CONGRESS APPROVES AND PRESIDENT SIGNS FIRST FEDERAL LAW AFFIRMATIVELY TO...

November 2009
CONGRESS APPROVES AND PRESIDENT SIGNS FIRST FEDERAL LAW AFFIRMATIVELY TO PROTECT LGBT INDIVIDUALS
Although Congress has approved some laws in the
past that were seen as advancing the gay rights
legislative agenda by removing adverse policies,
such as its 1990 tacit repeal of the gay immigration ban when it adopted a revised section on
medical exclusions that silently dropped “sexual
deviation” from the list, history was definitely
made on October 22 when the Senate voted 68-29
to approve S.1390, a defense spending bill that
included among its provisions the Matthew
Shepard Hate Crimes Prevention Act, the first
federal enactment affirmatively to protect individuals based on actual or perceived sexual orientation or gender identity. The bill had previously
been approved in a stand-alone vote in the House
on April 29, by a vote of 249-175, and was approved by the House as part of the same defense
spending bill on October 8 by a vote of 281-146.
The measure, which President Barack Obama
signed into law on October 28, expands on existing federal hate crimes law to add the categories
of gender, sexual orientation, gender identity and
disability to the existing categories of race, color,
religion and national origin. It provides for the
amendment of 18 U.S.C. sec. 249 to add the new
categories to the existing U.S. Code provisions on
hate crime prevention, and authorizes federal
prosecution by the Justice Department, and assistance to states in enforcing their similar hate
crimes laws. Since only some states have included sexual orientation and/or gender identity
in their hate crimes laws, in states lacking such
provisions the federal law will provide the only
authorization for direct law enforcement activity.
Hate crimes laws are controversial, with some
critics arguing that they grant preferential treat-
ment to certain groups, and threaten freedom of
speech and religious freedom by making it possible to prosecute individuals because of their political or religious beliefs opposing particular social groups. Defenders of the laws point out that
no “thought crimes” are criminalized by them;
rather, they focus on otherwise criminal acts of
violence where the victims are particularly targeted because of specified personal characteristics. While speech may be relevant to determining whether a victim was targeted because of their
status, the defendant is being prosecuted for the
crime, not the speech. Most of the federal action
authorized under the law is to assist states in enforcing their own hate crimes statutes.
Some opponents of the measure protested
against it being presented to the Senate as a part of
the defense appropriations package, since they
did not favor the hate crimes provisions but were
loath to vote against the military appropriation.
But this is a venerable method for presenting controversial methods in the Senate, where the filibuster rules allow determined minorities to prevent floor votes on controversial measures and
non-germane amendments are generally allowed
to pending legislation, and it is a tactic that has
been used by many of the opponents of the hate
crimes bill to win enactment of their favored legislative proposals. The measure had already overwhelming passed the House, so its enactment
through this strategy in the Senate was hardly a
perversion of democracy.
The provisions on sexual orientation and gender identity had been named for Matthew
Shepard, the young Wyoming college student who
was killed in a homophobic attack a decade ago,
and James Byrd, Jr., an African-American man
who was the victim of a horrendous hate crime,
whose deaths became a rallying point for the passage of federal hate crimes legislation. It was the
first item on the list of top legislative priorities on
LGBT issues for the Obama Administration. Now
that it has been enacted, the next item up on the
list is the Employment Non-Discrimination Act
(ENDA), which, in its inclusive version including
both actual and perceived sexual orientation and
gender identity, has wide co-sponsorship in both
houses and has received a successful hearing in
the relevant House committee. Some pundits
were predicting a vote on ENDA in the House before the end of calendar 2009, and enactment
during 2010, after which attention would turn to
several other pressing matters, including repealing the Defense of Marriage Act and the military
Don’t Ask, Don’t Tell policy (to be replaced with a
ban on sexual orientation discrimination in the
military), spousal benefits for same-sex partners
of federal employees, and recognition of committed same-sex couples under the immigration
laws. A.S.L.
LESBIAN/GAY LEGAL NEWS
Montana Supreme Court Rules for Lesbian
Co-Parent in Custody/Equitable Distribution
Dispute
“Sadly, this case represents yet another instance
in which fellow Montanans who happen to be lesbian or gay, are forced to battle for their fundamental rights to love who they want, to form intimate associations, to form family relationships,
and to have and raise children — all elemental,
natural rights that are accorded presumptively
and without thought or hesitation, to heterosexuals.” So wrote Justice James C. Nelson in a bold
concurrence, while casting a vote alongside five
other Justices of the Montana Supreme Court who,
on October 6, 2009, affirmed a lower court’s application of a state statute awarding Michelle Kulstad a parental interest over the objection of Barbara Maniaci, her ex-partner and legal parent of
two minor adopted children. Kulstad v. Maniaci,
LESBIAN/GAY LAW NOTES
Editor:
November 2009
Prof. Arthur S. Leonard, New York Law School, 57 Worth St., NYC 10013, 212-431-2156, fax 431-1804; e-mail: [email protected] or
[email protected]
Contributing Writers:
Chris Benecke, Esq. NYC; Alan J. Jacobs, Esq., NYC; Bryan Johnson, Esq., NYC; Daniel Redman, Esq., San Francisco; Stephen E. Woods,
NYLS ‘10; Eric Wursthorn, Esq., NYC.
Circulation:
Daniel R Schaffer, LEGALGNY, 799 Broadway, Rm. 340, NYC 10003. 212-353-9118; e-mail: [email protected]. Inquire for rates.
LeGaL Homepage:
http://www.le-gal.org
Law Notes on Internet:
http://www.nyls.edu/jac
©2009 by the LeGaL Foundation of the LGBT Law Association of Greater New York
ISSN 8755-9021
2009 WL 3179441. The Montana Supreme Court
also affirmed the lower court’s application of equitable distribution principles to the couple’s
jointly-acquired personal and real property.
Maniaci and Kulstad met in late 1995, and
within a relatively short amount of time they
moved in together. They exchanged rings on
March 18, 1996, and wore those rings until the
fall of 2006. Although the couple never obtained
any formal recognition of their relationship, the
two were indisputably partners nonetheless.
Maniaci purchased a 4.5 acre tract of land in
Montana for $30,000 in July 1995, and spent another $43,214.73 to improve the property that
year. She, however, did not have enough money to
finish building the house, so Kulstad agreed to
move to Montana and contribute her money and
labor to help complete the construction of the
home. The court noted that Kulstad contributed
more money and labor to the construction of the
196
house than Maniaci, even though Kulstad did not
share title to the real property. Maniaci, however,
assured Kulstad that “the property would be divided equally should their relationship end.” Maniaci also executed a will in 1998 that left the real
property to Kulstad.
As Kulstad’s assets dwindled, however, she incurred credit card debt for the benefit of the parties. This included paying to finish the basement
office for Maniaci’s chiropractic practice and purchasing malpractice insurance, among other
items needed for Maniaci’s practice. Maniaci initially agreed to help pay off Kulstad’s credit card
debt, but she failed to do so. When Maniaci received inheritance monies in 2001, she refused to
use such funds to pay down Kulstad’s credit
cards. Instead she deposited these monies into a
separate account to which only she had access.
Kulstad eventually filed for bankruptcy in May
2002.
Meanwhile, in mid-February 2001, one of Maniaci’s chiropractic patients, Camilla Eddy, asked
Kulstad and Maniaci to adopt her great-grandson,
L.M.. Eddy believed L.M.’s mother provided inadequate care for the child. In what appears to be
a dramatic turn of events left undiscussed by the
court, L.M.’s mother eventually relinquished custody to Maniaci and Kulstad. Kulstad and Maniaci thereafter took L.M. to the hospital and entered his name as L.L. Kulstad-Maniaci.
The couple sought legal advice regarding
same-sex adoptions. They were advised that under Montana law, only one of them could adopt
L.M. The parties decided that Maniaci would be
the adoptive parent, that L.M. would call only one
of them “mom” and that L.M.’s last name would
not be hyphenated. The couple agreed, however,
that “they would function equally as parents even
though only one of them could adopt L.M.” The
social worker that worked on this adoption was
fully aware that Kulstad and Maniaci were in a
committed relationship, and understood that Kulstad would co-parent and support L.M.
Maniaci decided in 2003 that she wanted to
adopt a girl. Although Kulstad initially objected to
adopting another child, Maniaci went forward
with the adoption. The couple understood that
they would each function as parents to the new
child. Eventually, Maniaci adopted A.M. from
Guatemala.
Kulstad lived with the children and functioned
as their parent on a day-to-day basis for the remainder of the relationship. The couple otherwise
functioned as any couple would, with Maniaci being the primary care-giver during the day while
Kulstad worked outside the home, and Kulstad
caring for the children while Maniaci saw chiropractic patients in the basement office of the
house in which they lived.
Eventually their relationship took a turn for the
worse. On January 19, 2007, Kulstad filed a petition to dissolve the parties’ common law marriage
and to equitably distribute the parties’ assets. She
further sought an order granting her a parental in-
November 2009
terest, implementing a parenting plan, and the
appointment of a guardian ad litem. Missoula
County District Judge Edward P. McLean denied
Maniaci’s motion to dismiss, appointed a guardian ad litem, and issued the TRO. Judge McLean
later rejected the dissolution portion of Kulstad’s
petition on the basis that Montana law does not
recognize same-sex marriages.
On March 20, 2007, Judge McLean held a
hearing to determine whether Kulstad had a parental interest in the minor children under sec.
40-4-228, MCA, whether a parenting plan was
warranted and whether the TRO should remain in
effect. Section 40-4-228, MCA was enacted in
1999 and provides that “when a nonparent seeks
a parental interest in a child under 40-4-211 or
visitation with a child, the provisions of this chapter apply unless a separate action is pending under Title 41, chapter 3.” Section 40-4-211 (4) (b),
MCA, allows a nonparent standing to seek a parenting interest of a minor child if the person has
established a child-parent relationship.
Judge McLean concluded that Kulstad had established by clear and convincing evidence that a
child-parent relationship existed between her and
the minor children in accordance with sec.
40-4-211 (4) (b) and (6), MCA. The court determined that an interim parenting plan was in the
best interest of the children and kept the TRO in
place with the exception that Kulstad could return
to the former family home for visitation exchanges.
After a bench trial on May 22 and 23, 2008,
Judge McLean found that Maniaci had failed to
present any credible evidence to show that continuing the children’s relationship with Kulstad
would not be in their best interest given each
child’s attachment disorder. Therefore, the court
awarded Kulstad a parental interest in L.M. and
A.M. The court further determined that Kulstad
would have equal decision-making authority with
Maniaci regarding significant matters affecting
the children.
Judge McLean also found that Maniaci and
Kulstad were domestic and financial partners
with long-term commitments. Therefore, the court
applied equitable distribution principles to the
jointly acquired assets of the couple, noting that
Kulstad should be compensated for her significant financial contributions, to avoid unjustly enriching Maniaci. Judge McLean therefore
awarded Kulstad a flat monetary payment and title to a Kia Sportage vehicle.
On appeal to the Montana Supreme Court, Maniaci challenged sec. 40-4-228, MCA, arguing
that the statute improperly fails to require a court
to determine the “fitness” of a natural parent before awarding a nonparent a parental interest
based upon the best interests of the child. Maniaci
also appealed the factual determinations of the
lower court, as well as the equitable distribution
of the couple’s property.
Maniaci’s first argument was primarily based
upon Troxel v. Granville, 530 US 57 (2000) and
Lesbian/Gay Law Notes
Polasek v. Omura, 2006 MT 103, 332 Mont. 157.
Troxel involved grandparents who sought visitation rights via a Washington State statue which allowed “any person” to petition for visitation
rights.
Writing for the majority, Justice Brian Morris
distinguished the statute in Troxel from the instant
case because sec. 40-4-228, MCA requires a
showing by the party seeking visitation rights of a
pre-existing child-parent relationship. Further,
the statute mandates that the parent’s due process
rights be balanced with the children’s constitutional rights in determining the best interest of the
child. Therefore, the Montana Supreme Court
concluded that the more narrowly tailored sec.
40-4-228, MCA would pass muster under the
analysis in Troxel,
Maniaci further argued that Kulstad must show
Maniaci was an unfit parent before being awarded
a parental interest, based upon Polasek. The court
rejected this argument because the statute at issue in Polasek, sec. 40-9-102, MCA, a grandparent contact statute, contained different language
specifically requiring such showing, as opposed
to sec. 40-4-228, which did not. The Montana Supreme Court also noted that Troxel did not reach
the issue of whether all nonparental visitation
statutes must include a showing of harm or potential harm to the child as a condition precedent to
granting visitation, and took that as a sign that
such a showing was not in fact required.
The Montana Supreme Court otherwise determined that the lower court’s finding of Kulstad’s
parental interest was supported by the credible
evidence adduced by the lower court. Justice
Morris wrote: “Maniaci cannot rewrite the history
of the fact that she and Kulstad lived together for
more than 10 years and jointly raised the minor
children in the same household”.
The court also affirmed the lower court’s equitable distribution of the couple’s personal and
real property. The Montana Supreme Court noted
that it had previously approved equitable distribution within the context of unmarried cohabitants. Anderson v. Woodward, 2009 MT 144, 250
Mont. 343.
Justice Jim Rice was the sole dissenter. Justice
Rice argued that sec. 40-4-228, MCA was unconstitutional because it impermissibly interfered
with a parent’s constitutional right to raise their
children. According to Rice, the majority went too
far and misconstrued Troxel, because the Supreme Court did not “define the precise scope of
the parental due process right in the visitation
context.” He writes that the majority deferred to
the misguided legislature and failed to exercise its
mandate and strike down sec. 40-4-228, MCA as
violative of a parent’s due process right.
Justice Rice argues, alternatively, that even if
the statute was constitutional, the lower court
erred in awarding Kulstad a parental interest. He
argues that there was only evidence that Maniaci
engaged in conduct contrary to an exclusive
child-parent relationship with her children. How-
Lesbian/Gay Law Notes
ever, this argument is unpersuasive in light of
Judge McLean’s repeated findings that: [1] Maniaci discouraged a relationship between the minor children and Kulstad; and [2] that Kulstad’s
role in the children’s lives was essential in light of
their attachment disorders and would otherwise
promote healthy development and the ability to
maintain healthy relationships into adulthood.
Therefore, it would appear that there was sufficient evidence for the lower court to conclude that
Maniaci engage in conduct contrary to the childparent relationship altogether by disregarding the
children’s welfare.
Justice Nelson wrote a very passionate concurrence, wherein he called homophobic discrimination “a prevalent societal cancer grounded in bigotry and hate” which cannot be justified,
legalized or constitutionalized. Justice Nelson
also wrote a special concurrence in Snetsinger v.
Montana University System regarding homophobic discrimination within the context of constitutional analysis (2004 MT 390, 325 Mont. 148), to
which he refers in this decision. The purpose,
however, of Justice Nelson’s concurrence is not
exactly clear. He makes grand pronouncements
that don’t really seem to be at issue before him,
but perhaps he is trying to point out that this case,
and cases like it, would not exist if Maniaci and
Kulstad’s relationship had been afforded the
benefits and protections otherwise granted under
the institution of marriage. Eric Wursthorn
Voters Confront Gay Partner Issues in Maine and
Washington State
This issue of Law Notes goes to press just days before voters in Maine and Washington State will
weigh in on legal rights of same-sex partners. In
Maine, the so-called “citizen’s veto” process will
be tested when the recently enacted law authorizing marriages for same-sex couples is voted up or
down. In Washington State, the referendum affords voters an opportunity to support or oppose a
recently enacted law expanding the rights of
same-sex domestic partners to approximate those
of marriage under state law. Confusingly, a yes
vote in Maine repeals the same-sex marriage law,
while a yes vote in Washington State retains the
expanded domestic partnership law. In Washington State, there has been significant litigation over
side issues accompanying the referendum, capturing the attention of the U.S. Supreme Court (see
below) on the question whether it would violate
the 1st Amendment for the state to release the
names of those who signed petitions to put R-71
on the ballot. Polling suggests that predicting the
results in either state would be foolhardy, but by
the time many of our readers receive this newsletter, they will be known. Neither of the enactments
has gone into effect, being stayed until they are
voted upon. In Tacoma, U.S. District Judge Ronald Leighton rejected a last-minute move by Family PAC, opponents of gay rights, to obtain an
“emergency” suspension of a state law banning
November 2009
contributions above $5,000 in the final weeks of a
campaign and requiring public identification of
many donors. Seattle Times, Oct. 28. A.S.L.
Texas Judge Finds Same-Sex Marriage Bans
Unconstitutional While Asserting Jurisdiction Over
Divorce Petition
T1 = In a surprise move, Texas District Judge
Tena Callahan, who was elected to the bench in
the 302nd Family District Court in Dallas in
2006, ruled October 1 that a male same-sex couple who married in Massachusetts and subsequently move to Dallas can get a divorce from the
Texas Family Court. In the Matter of the Marriage
of J.B. and H.B., No. DF-09-1074 (302nd Judicial District, Dallas County, Texas, October 1,
2009).
Judge Callahan issued a brief, one-page order,
which technically was responding to an attempt
by Attorney General Greg Abbott to intervene in
the case. Abbott had filed his Intervention a week
after the divorce petition was filed last January,
arguing that the court did not have jurisdiction to
decide the divorce case because of the state’s
constitutional and statutory bans on performing or
recognizing same-sex marriages.
In her Order, Judge Callahan provided no explanations or legal reasoning, merely asserting
that the constitutional and statutory provisions
violate “the right to equal protection” and therefore violate “the 14th Amendment of the United
States Constitution,” and so, she continued, “the
Court FINDS that it has jurisdiction to hear a suit
for divorce filed by persons legally married in another jurisdiction and who meet the residency and
other prerequisites required to file for divorce in
Dallas County, Texas.”
In so ruling, she also ordered that the Attorney
General’s Plea to Jurisdiction was denied and that
the Intervention he had filed in the case was to be
“stricken,” whatever that means. Abbott immediately issued a statement announcing that he was
appealing the ruling “to defend the traditional
definition of marriage that was approved by Texas
voters,” and Governor Rick Perry quickly chimed
in, stating: “The laws and constitution of the State
of Texas define marriage as an institution involving one man and one woman. Today’s ruling purports to strike down that constitutional definition
— despite the fact that it was recently adopted by
75 percent of Texas voters.” Perry added that he
believed the ruling is “flawed and should be appealed.”
Contrary to these comments, Judge Callahan
prefaced her brief order with the statement that
she was ruling “on the limited issue of whether
this Court has jurisdiction” to divorce the parties
to the action.
J.B. and H.B., who married in Cambridge,
Massachusetts, in September 2006, after many
years of living together as a couple, subsequently
moved to Texas in 2008, residing in Dallas
County. They decided the marriage wasn’t work-
197
ing and came to an amicable separation agreement, but were advised that because they were legally married in another state, they should seek a
formal divorce to terminate the relationship. Peter
A. Schulte, a Dallas attorney, filed the divorce petition on their behalf on January 21, 2009.
In papers he filed opposing the Attorney General’s jurisdictional argument, Schulte did not attack the constitutionality of the Texas Marriage
Amendment or the state’s version of the Defense
of Marriage Act. Instead, his strategy was to argue
that these provisions were essentially irrelevant,
since J.B. and H.B. were not asking the government to recognize their marriage, but were merely
asking the court to end it, and thus they were not
seeking to enjoy any of the privileges or benefits of
marriage that Texas might afford. Of course, some
might argue that the ability to get a judicial dissolution of a relationship is, in a sense, one of the
benefits of marriage, but Schulte did not mention
this.
Rather, Schulte came up with an ingenious argument, based on the wording of the marriage
amendment, that it was binding on the executive
branch of the state government but not on the judiciary. He also noted that Texas has adopted a
domestic violence statute that has been construed
to extend to same-sex couples, which means that
the legislature itself has authorized the courts to
recognize same-sex couples as family members
when the courts issue orders of protection in domestic violence cases, which would be inconsistent with an argument that the state marriage
amendment precludes the courts from recognizing same-sex couples as married for any purpose.
Judge Callahan’s decision ignores all of this argumentation, merely stating her conclusions.
Those conclusions are at the heart of another case
that has received extensive national media coverage, Perry v. Schwarzenegger, filed in San Francisco Superior Court earlier this year by Ted
Olsen and David Boies on behalf of two California
same-sex couples challenging the constitutionality of California Proposition 8, which enacted a
more limited anti-gay marriage amendment in
that state. (The Texas marriage amendment forbids civil unions as well as same-sex marriages,
while the California amendment has no effect on
the state’s Domestic Partnership law, which provides virtual civil unions for registered partners.)
In Perry, the plaintiffs are arguing that Proposition
8 violates the 14th Amendment’s equal protection
clause by embedding in the California Constitution a facially discriminatory definition of marriage. Similarly, in Gill v. Office of Personnel Management, filed last winter by Gay & Lesbian
Advocates & Defenders in Boston, an equal protection claim based on the 5th Amendment is asserted against the federal Defense of Marriage Act
on behalf of married same-sex spouses from Massachusetts who have been denied federal benefits
to which they would otherwise be entitled.
State trial court decisions are interesting in
themselves and may affect the rights of the parties
198
if not reversed on appeal, but otherwise have no
precedential value. Only appellate courts can issue decisions that are binding on other courts,
and only the highest court of a state can issue decisions binding on all the courts of the state, so it
will be a while before we can know how important
this ruling is. But for now it has created quite a
sensation in Texas, to judge by the local media reports. Undoubtedly anticipating how much it
would disrupt her day, Judge Callahan arranged
to issue the ruling late on Thursday and then took
off to attend a full-day meeting today with her
clerk, leaving behind a message on her chambers
phone asking callers not to leave voicemails. This
writer, frustrated at not being able to find the opinion, communicated with attorney Schulte, who
sent out a copy together with his papers responding to the A.G.’s intervention, for which we thank
him! His papers were the more valuable document for learning about the case, given the cryptic
opinion by the judge. A.S.L.
California Appeals Court Revives Sexual
Orientation Discrimination Claim by Salesman
In Wiedemeier v. AWS Convergence Tech., Inc.,
2009 WL 3165746 (Cal. App. 2d Dist., Oct. 5,
2009), a California appellate court reversed a trial
court ruling that granted summary judgment for
defendant company in a sexual orientation discrimination suit brought under the California Fair
Employment and Housing Act (FEHA) by a gay
and HIV+ former employee. The court centered
its holding on whether “the bases for plaintiff’s
termination were pretextual, and whether plaintiff
submitted evidence raising a triable issue of material fact as to whether his termination was because of discrimination because of his sexual orientation.” The decision provides a rare look into
the facts of a sexual orientation discrimination
case under California law.
The court examined plaintiff’s circumstantial
evidence by way of a three-part test, reasoning
that “direct evidence of intentional discrimination is rare, and…such claims must usually be
proved circumstantially.” The three parts require:
“1) The complainant must establish a prima facie
case of discrimination; (2) the employer must offer a legitimate reason for his actions; [and] (3)
the complainant must prove that this reason was a
pretext to mask an illegal motive.” The court held
that “[t]he evidence presented by plaintiff, taken
as a whole, was sufficient to raise triable issues of
material fact that would permit a trier of fact to
find by a preponderance that intentional discrimination occurred.”
Plaintiff was hired in 2003 to sell web advertising space for defendant company. The company
argued that plaintiff had sent inappropriate
emails, failed to net bigger clients, and that his job
performance was “unsatisfactory.” The supervisor stated that he had no discriminatory intent and
that “he was very close to a gay relative, had used
November 2009
a gay nanny for his children, and that his wife’s
best friend is a gay man.”
Plaintiff claimed, in contrast, that he was a star
employee, and that the timing of the termination,
comments made by his supervisor, and lack of
warning or discipline for the alleged infractions
raised a triable question of discrimination.
Plaintiff had significant success as an employee at defendant company. He was “recognized with the first annual Platinum Club award
for being defendant’s top national salesperson” in
2005, and in 2006 won another sales award that
netted him a trip to a national meeting in Florida
in March. Permitted to bring a guest, plaintiff requested to bring a male friend who shared his
room. It was through this, plaintiff believed, that
defendant company became aware of his sexual
orientation.
In the months following the trip, his supervisor
made two comments that caused plaintiff concern. First, at a dinner, the supervisor referred to
the actors in a children’s television program as
“just a bunch of gay men running around in purple tights.” The second comment took place at a
cocktail party. While plaintiff’s supervisor and
another person were talking, plaintiff approached
them and asked, “Oh, have you guys met? Do you
guys know each other?” The supervisor responded and said, “No, we just met each other. We
both like titties — something you wouldn’t know
much about.” When the plaintiff asked his supervisor if the group would be going out to dinner after the event, he responded, “No, you can leave.”
Mere weeks later, plaintiff was fired because — in
the words of his supervisor — “we think there are
better types to call on blue chip advertisers.”
Prior to his termination plaintiff had received neither written nor oral warnings about any problems
with his work.
The court held as a result that “[t]his evidence
of plaintiff’s raises, accolades, and revenue generation is sufficient to raise a triable issue of material fact disputing defendant’s claim that plaintiff
was terminated because of dissatisfaction with his
performance. Defendant dismisses this evidence
as demonstrating that plaintiff performed well in
the past, but did not show present satisfactory performance. Given the very short time frame between the award, the raise, and accolades that
plaintiff received in March and April of 2006 and
his termination in July 2006, we conclude plaintiff’s evidence raises a triable issue of material
fact.” Daniel Redman
Supreme Court Keeps Washington Petition Names
Secret Without Ruling on Odd Constitutional
Theory
In a non-explanatory order issued on October 20,
the United States Supreme Court decreed that the
names of those who signed petitions to put a
Washington State referendum on the ballot to repeal the state’s recently-enacted law expanding
benefits for registered domestic partners must be
Lesbian/Gay Law Notes
kept secret until a final ruling on the merits of the
claim that revealing the names would violate the
First Amendment. John Doe #1 et al. v. Reed,
Washington Secretary of State, No. 09A356 (Oct.
20, 2009).
Washington enacted a domestic partnership
statute a few years ago, which afforded a list of
rights and responsibilities to same-sex domestic
partners that fell short of full state law equality
with marital partners. Earlier this year, the legislature approved and the governor signed a law
that was intended to give domestic partners substantial equivalence under state law to marital
partners. Opponents of the law, led by a group
calling itself Protect Marriage Washington, collected sufficient signatures to put a repeal referendum on the ballot, which stayed implementation of the law pending the vote on November 3.
Under Washington State’s Public Records Act,
state officials were prepared to release the names
of those who signed the petitions at the request of
several groups, but Protect Marriage Washington
went to court on behalf of some “John Doe” petition signers, seeking to keep the names confidential. They argued that revealing the names could
subject the signers to persecution by same-sex
marriage advocates, and persuaded federal district judge Benjamin Settle that this would violate
the First Amendment by “chilling” political
speech. The district judge bought the argument,
at least to the extent of ordering preliminary injunctive relief on September 10, an action that requires the court to find that the plaintiffs are likely
to succeed on the merits and that failing to issue
the preliminary injunction will cause irreparable
injury to the plaintiffs. The plaintiffs argued that a
release of the names can’t be undone, so they had
to be kept secret until the case was ultimately decided.
The state appealed to the U.S. Court of Appeals
for the 9th Circuit, which issued a brief order on
October 15 reversing the district judge and ordering release of the names. The 9th Circuit panel
did not explain its reasoning, indicating it would
issue a full opinion later. The Protect Marriage
group immediately petitioned the Supreme Court
to have the 9th Circuit’s order stayed, and the Supreme Court voted 8-1, Justice John Paul Stevens
dissenting, to stay the 9th Circuit’s order and
keep the District Court’s preliminary injunction
in effect “pending the timely filing and disposition of a petition for a writ of certiorari.” The Court
indicated that if it did not ultimately grant review
in the case, the 9th Circuit’s order could go into
effect, but that if it granted review, the preliminary
injunction would continue until the Supreme
Court could decide the case.
Either way, of course, this means the names will
not be released before the election on November
3, so Protect Marriage Washington has at least an
interim victory and will avert the distractiom from
the campaign of having the names of petition signers publicized.
Lesbian/Gay Law Notes
Protect Marriage’s theory of the case proposes
that democracy can only function if people are
free to express their views anonymously through
non-disclosed petitions and secret ballot votes.
This theory should disturb “originalists,” since
the idea of secret balloting was not widely accepted in the late 18th century when the First
Amendment was adopted. During the early period
of our country’s history, before the invention of
voting machines, elections were very public affairs. People would gather at polling places to observe the proceedings, voters would publicly declare their preferences, and everyone was taking
notes and keeping score. It was only later in our
history that the idea of secret ballot voting caught
on.
Protect Marriage’s case would take that one
step further, finding First Amendment protection
for voter identity to an extent that would override
the contrary trend towards transparency evidenced by the adoption of Public Record Laws
such as Washington State’s. Perhaps taking it
even one step further, they would argue the unconstitutionality of federal and state laws that
make the names of donors readily available on
state and federal web sites. Since their main argument is based on the reported harassment suffered by some prominent financial donors to California Proposition 8 last year — continuing in the
form of organized boycott efforts against the Manchester hotels in San Diego, for example — its
logic would extend to ending such donor disclosures, which would severely undermine attempts
to let the public know who is behind public policy
referenda.
This one bears close watching. A.S.L.
New York Court Finds “Exceptional
Circumstances” Support Trans Dad’s Custody
Petition
Does a female-to-male transsexual have standing
to petition for custody of a child born to his former
wife through donor insemination? In K.B. v J.R.,
2009 WL 3337592 (N.Y.Sup., Kings County, Oct.
14, 2009), Justice Esther M. Morgenstern of the
New York Supreme Court, Kings County, has answered that question affirmatively.
The Petitioner, identified in the decision only
as KB, was born a woman but has lived as a man
since the age of 15. Though KB has received hormone treatments, he has not undergone gender reassignment surgery and is legally still a woman.
KB and the Respondent, identified as JR, began
living together in early 1998, and after Petitioner
changed his name from Cassandra to KB in July of
that year, the couple obtained a marriage license.
To do so, both parties fraudulently represented
that KB was biologically male.
In 1999, the couple decided to conceive a child
through donor insemination. KB and JR jointly
selected a sperm donor “whose characteristics
and interests” matched those of the Petitioner,
and in 2001 KB signed a consent form for JR to be
November 2009
inseminated. After three treatments, JR gave birth
to a premature child whom the couple named KB
Jr.
The current action arose after May 2006, when
the relationship soured and the parties became
estranged. Both JR and KB filed petitions for custody of KB Jr., with KB pointing to the fact that JR
left the child with the petitioner when she left the
marital home. Because of KB Jr.’s premature
birth, he apparently requires a number of medical
considerations. Each of the parties insisted that
the other had not looked after those needs, with JR
accusing KB of feeding KB Jr. dairy products that
aggravate the child’s asthma. Additionally, allegations of abuse by both JR and KB, against each
other and against the child, went back and forth,
but the court ultimately found KB’s version of
events more credible. KB was awarded temporary
custody of the child for safety reasons.
KB petitioned for full custody of KB Jr., and JR
moved to dismiss the petition, claiming that KB
had no standing. The Respondent argues that KB
is a biological stranger, unrelated to the child, who
could never have been legally married to the
child’s mother because of New York’s ban on
same-sex marriage. The Petitioner contends that
the doctrine of equitable estoppel should prevent
JR from claiming that KB was not the legal parent
of KB Jr.
Equitable estoppel is essentially a doctrine of
fairness, which bars a party from claiming a fact
that is contradicted by the party’s earlier actions.
Applied in this case, KB is arguing that because
JR acted as if KB was the child’s father, she
should not now be able to argue that KB is not. Although the court ultimately agreed with KB’s reasoning, equitable estoppel as it relates to the actions of the parents alone cannot confer standing
on a biological stranger who seeks custody or visitation. So the opinion by Justice Morgenstern
must rely on additional factors in determining
KB’s standing.
New York has traditionally found that nonbiological parents can’t claim custody of a child
over the objection of the child’s natural parents
unless a court finds “extraordinary circumstances” that would drastically affect the welfare
of the child. The bar is set extremely high, because it is generally accepted that the court
should not be in the business of taking children
away from their parents just because they find
that someone else might be a better guardian.
Morgenstern’s decision focuses on the fact that
the child has bonded with KB as a father, and, she
writes, “[a]n abrupt termination of the father-son
relationship…would put the child in a situation
where his welfare could be affected drastically.”
The court notes that security and stability “are vital to the successful personality development of a
child,” and “where a natural parent affirmatively
brought about or acquiesced in the creation of a
secure, stable and continuing parent-child relationship with a third party who has become the
psychological parent there comes a point where
199
the ‘rebuttable presumption’ which, absent such a
change, is employed to favor the natural parent
disappears.”
The court notes that in addition to the strong
bond between the child and the petitioner, alleged
abuses by JR, as well as JR’s voluntary abdication
of physical custody and parenting responsibility
collectively amount to sufficient exceptional circumstances.
With JR unable to challenge KB’s standing, the
case is remanded to determine custody of KB Jr.
Stephen Woods
Federal Court Dismisses Claim of Discrimination
Based on Homosexuality, Distinguishing
Discrimination Based on Effeminacy
A longtime municipal worker in the small town of
San German, in southwestern Puerto Rico, was
mercilessly harassed by coworkers. In order to
protect him, his supervisors transferred him to a
job he did not want. Even at the new job, homophobes hounded him. He sued his employer, but
the federal district court dismissed his civil rights
suit because the alleged discrimination was
based on sexual orientation, which is not federally
prohibited. If he had alleged that his failure to
conform to masculine sex stereotypes incited the
discrimination, he might have had a shot, said the
court. Ayala-Sepulveda v. Municipality of San
German, 2009 WL 3199861 (D. P.R. Sept. 30,
2009).
Luis Aik Ayala-Sepulveda worked for the municipality of San German for five years in various
positions. In 2005 he was promoted to a position
in the local emergency management office. In
2006, while he was taking a rescue course, his coworkers started ridiculing him. The harassment
got worse after Luis had a 3-month affair with a
coworker, Jose J. Rodriguez-Vega, in late 2007.
Jose, who had been convicted of domestic violence, started harassing and threatening Luis. In
early 2008, Luis complained to a supervisor, who
tried to provide some protection. Jose’s threats
did not stop, and another coworker, Pablo
Miranda-Santana, began harassing Luis.
The solution offered by Luis’s supervisor and
the town’s mayor was to transfer Luis to the municipal cemetery. Luis refused such a transfer on
the ground that the harassers, and not the victim,
caused the problem, and should suffer consequences. The mayor, however, stated that he believed Luis’s homosexuality was the problem, and
insisted on a transfer. Luis started treatment for
anxiety and panic attacks.
In May 2008, Luis filed a complaint with the
state personnel office, which began an investigation. The mayor then transferred Luis to the town
finance department as an accounting clerk.
Meanwhile, Luis continued to suffer ridicule from
his former coworkers at the emergency services
department. In August 2008, Luis filed a complaint with the federal Equal Employment Opportunity Commission (EEOC) alleging discrimina-
200
tion based on sex and gender stereotyping under
Title VII of the Civil Rights Act of 1964. He also
alleged unlawful reprisals for bringing the complaint.
The EEOC dismissed the action. He then, in
May 2009, filed the complaint in federal court,
adding an allegation of violation of his right to due
process and equal protection. The federal court,
acting on a motion to dismiss, had to decide
whether Luis stated a cause of action under Title
VII for which relief could be granted.
Thus, he must state that the discrimination was
based on sex, which is illegal under federal law,
and not based on sexual orientation, which is not
illegal. District Judge Gustavo A. Gelpi held that
Luis had failed to make a proper allegation. All of
the specific incidents raised in the complaint
were based on Luis’s homosexuality, not on his
failure to fit into masculine gender stereotypes,
which would bring the case within the ambit of
federal civil rights law. Although Luis did allege
that the discrimination was based on his failure to
seem sufficiently masculine, “threadbare recitals
of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Ashcroft v. Iqbal — U.S. — , 129 S. Ct. 1937, 173 L.
Ed. 2d 869 (2009). The court held that discrimination based on effeminacy is cognizable, but not
based on homosexuality.
Judge Gelpi also held that the claim based on
retaliation could not stand. Courts allow a cause of
action for retaliation when one complains of a violation of civil rights laws, and his or her supervisors retaliate for raising the complaint. However,
the plaintiff must have a “reasonable belief that
there is a Title VII violation.” Petitti v. New England Tel. & Tel. Co., 909 F.2d 28 (1st Cir. 1990).
Luis’s belief could not, according to the court, be
“objectively reasonable since his complaint was
founded entirely on sexual orientation, which is
not a protected activity.”
Thus, Judge Gelpi dismissed the Title VII
cause of action in its entirety.
In his complaint based on due process, Luis alleged that officials acting under color of state law
deprived him of federally protected rights. Luis
cited First Circuit cases that had held that the due
process clause “protects government employees
who possess property interests in continued public employment.” A government employee can
only be fired if there is good cause and the employee is afforded some sort of hearing. However,
the courts recognize a property interest only in
continued government employment, not in continuing to perform particular functions, held the
court. Since Luis was not terminated, but rather
was transferred, he was not deprived of his right to
continued employment. The court held that his
due process rights were not violated, and dismissed Luis’s complaint. Alan J. Jacobs
November 2009
N.Y. Appellate Term Panel Rejects Medical
Substantiation Requirement for Trans Name
Change
A panel of the Appellate Term of the New York Supreme Court in New York County has unanimously reversed a decision from February 2009
by Civil Court Judge Manuel J. Mendez that
sought to impose a medical substantiation requirement before granting a name-change sought
by a transsexual applicant. At the same time, the
court cautioned in its October 21 ruling in In the
Matter of the Application of Winn-Ritzenberg, No.
09-227, NYLJ, Oct. 27, 2009, p. 26, col. 1
(N.Y.Sup.Ct., App. Term, N.Y. Co.), that the name
change did not signify a determination as to legal
change of gender
Leah Yuri Winn-Ritzenberg, having concluded
that his gender identity was male, wanted to
change his first name to Olin, and sought assistance from the Name Change Project of the Transgender Legal Defense & Education Fund, which
filed a petition on Winn-Ritzenberg’s behalf in
the New York City Civil Court, where it was assigned to Judge Mendez. Volunteer attorneys
Brenna DeVaney, Benjamin Edwards, Daniel
Gonen and Janson Mao worked on the case. In an
opinion that stirred outrage and consternation in
the transgender community, Judge Mendez denied the petition, opinion that the court could not
allow somebody born female to take up a male
name without medical proof. The petition had
been filed without such proof, on the understanding that New York Law freely allows people to
change their names.
Decisions by the Civil Court are appealed to
the Appellate Term of the Supreme Court, an intermediate appellate bench made up of designated trial court judges, whose decisions can be
appealed in turn to the Appellate Division of the
Supreme Court. TLDEF appealed on behalf of
Winn-Ritzenberg, with amicus assistance from
Lambda Legal and cooperating attorneys at Debevoise & Plimpton. Daniel Gonen argued the appeal.
The Appellate Term panel consisted of Justices
Douglas E. McKeon, presiding, Martin Schoenfeld and Martin Shulman. They unanimously reversed Judge Mendez. “We exercise our discretion under CPLR 5704(b) and grant the
transgendered petitioner’s application for a name
change corresponding with petitioner’s male gender identity,” wrote the panel in a per curiam
opinion. “In the absence of evidence of fraud,
misrepresentation, or interference with the rights
of others, the name change petition should have
been granted.”
“There is no sound basis in law or policy to engraft upon the statutory provisions an additional
requirement that a transgendered petitioner present medical substantiation for the desired name
change,” the court continued. “‘Apart from the
prevention of fraud or interference with the rights
of others, there is no reason — and no legal basis
Lesbian/Gay Law Notes
— for courts to appoint themselves the guardians
of orthodoxy in such matters,’” the court commented, citing a prior ruling, Matter of Guido, 1
Misc. 3d 825, 828 [2003].
However, “in granting petitioner’s application,” the court concluded, “we do not address the
separate issue of whether petitioner has changed
gender for legal purposes.” This parting shot signals an unfinished debate among the courts about
what would be necessary to recognize an individual’s change of identity as having legal significance in those instances where the law takes account of gender, such as the right to marry in most
states, including at the time of writing New York.
Many courts insist that only after a full gender
transition including surgical alteration can an individual change his or her legal sex, which is a
matter of considerable controversy among legal
scholars and transgender rights advocates. A.S.L.
Discovery Dispute May Delay Trial in Prop 8 Case
A dispute about a discovery demand in the pending federal lawsuit challenging the constitutionality of California Proposition 8 may delay the trial
in the case, which has been scheduled to begin in
January. Although on October 23 U.S. District
Judge Vaughn R. Walker denied a motion to stay
discovery while lawyers representing the Official
Proponents of Proposition 8 ask the U.S. Court of
Appeals for the 9th Circuit to reverse Walker’s
October 1 ruling that they have no First Amendment right to refuse to turn over internal communications from the Proposition 8 referendum campaign, they are likely to seek a stay from the 9th
Circuit. Walker’s original ruling on the discovery
request is reported as Perry v. Schwarzenegger,
2009 WL 3234131 (N.D.Cal.).
Perry v. Schwarzenegger was filed last spring by
star appellate attorneys Ted Olson and David
Boies on behalf of two California same-sex couples who want to marry in their state of residence
but cannot do so as a result of the passage of
Proposition 8 in November 2008. Proposition 8
placed into the California Constitution a new section stating that only a marriage between one man
and one woman will be “ valid or recognized in
California.” Its enactment put an end to new
same-sex marriages in California, although the
state Supreme Court ruled that marriages contracted prior to that enactment remained valid.
Gay political groups in California are divided over
whether to seek repeal of Prop 8 by initiative in
2010 or 2012, but one group has filed papers
seeking a 2010 initiative.
The original named defendants in the lawsuit
include Governor Arnold Schwarzenegger and
Attorney General Gerry Brown in their official capacities as state officers, but since both of those
officials declined to defend the constitutionality
of the measure (and Brown actually argued before
the California Supreme Court that it was unconstitutional), Judge Walker allowed the Proposition 8
Lesbian/Gay Law Notes
Official Proponents to intervene as parties in the
case to defend Proposition 8.
The theory of the lawsuit is that Proposition 8
violates the Equal Protection Clause of the 14th
Amendment of the U.S. Constitution because it
was intended to and did adopt a discriminatory
policy about access to and recognition of marriages in California. During the discovery phase
of the case, the plaintiffs are seeking to uncover
evidence supporting their argument that Proposition 8 had a discriminatory purpose. Among their
discovery requests to the Proposition 8 Proponents is a demand for “all versions of any documents that constitute communicating relating to
Proposition 8, between you and any third party,
including, without limitation, members of the
public or the media.”
The Proponents objected to this demand,
claiming that the information sought is privileged
from discovery under the First Amendment and
that the discovery demand is overly broad and
burdensome. They point to instances where supporters of Proposition 8 were subjected to harassment and business boycotts, and claim that turning over the requested information would lead to
more of the same. They argue that exposing all
these internal communications to the light of day
may have a deterrent effect in the future, chilling
political speech and activity. In their new motion,
filed with the court on October 8, they also suggest
that it is inappropriate to force them to reveal their
internal deliberations on a winning strategy in
light of current political developments, stating
that the concerns they have expressed “are especially salient where, as here, the losing side of a
hard-fought referendum campaign seeks complete disclosure of the successful campaign strategy of the winning side, and it does so while preparing for a political ‘rematch.’”
Responding to these arguments, the plaintiffs
pointed out that the names of all financial donors
to the Proposition 8 campaign were required to be
reported to state authorities and were subsequently posted on an open government website, so
they were not demanding donor lists or information. Furthermore, political consultants to the
Prop 8 proponents had actually published an article detailing their winning campaign strategy, so
that was hardly a confidential secret. The communications the plaintiffs are now seeking are documents that would shed light on the motivations of
those who proposed and sought to pass the measure, which could be useful in trying to prove that
Prop 8 was proposed and pushed for discriminatory reasons.
Judge Walker decided the First Amendment issue against the Proponents, finding that what the
Plaintiffs were seeking was potentially relevant to
the lawsuit, but he agreed with the Proponents
that the discovery request was too broad and burdensome. He ordered that the plaintiffs quickly
refine their request to focus on the types of material that are likely to lead to relevant evidence in
the case.
November 2009
Walker described as “general areas of appropriate inquiry” such things as “(1) communications by and among proponents and their agents
(at a minimum, Schubert Flint Public Affairs [the
outfit that handled the advertising campaign for
Prop 8]) concerning campaign strategy and (2)
communications by and among proponents and
their agents concerning messages to be conveyed
to voters, without regard to whether the voters or
voter groups were viewed as likely supporters or
opponents or undecided about Prop 8 and without
regard to whether the messages were actually disseminated or merely contemplated. In addition,
communications by and among proponents with
those who assumed a directorial or managerial
role in the Prop 8 campaign, like political consultants or ProtectMarriage.com’s treasurer and executive committee, among others, would appear
likely to lead to discovery of admissible evidence.”
The plaintiffs quickly redrafted their discovery
request to meet the court’s guidelines, prompting
the Proponents to file their appeal to the 9th Circuit and their motion before Judge Walker to stay
his discovery order pending the appeal. They
pointed out that once something has been disclosed, and can’t be “undisclosed,” so they would
suffer irreparable injury to their First Amendment
rights if the 9th Circuit accepted their argument
after they had been forced to comply with Walker’s order. They reiterated their view that being
forced to disclose the type of material being
sought “will cause future initiative proponents to
censor their speech with campaign volunteers,
donors, supports, and agents, for fear that their
communications will be publicly disclosed in future litigation” and that “it will silence initiative
supporters who want to remain anonymous.” This
last point picks up on a winning argument in a recent lawsuit in Washington State concerning
whether the names of petition signers for the initiative to repeal the latest amendments to Washington’s domestic partnership law should be made
public.
Judge Walker rejected the request for a stay on
October 23. According to a report in the San Francisco Chronicle on Oct. 26, Walker found that the
Proponents had failed to show that disclosure of
the material sought in the revised discovery request would either violate freedom of speech or
subject any parties to harassment. “It simply does
not appear likely that proponents will prevail on
the merits of their appeal,” he wrote. A.S.L.
Back to Square one for California DOMA
Challenge
The Associated Press reported late in August that
U.S. District Judge David O. Carter granted the
federal government’s motion to dismiss the pending lawsuit of Smelt v. United States (U.S.Dist.Ct.,
Central Dist. Calif., Aug. 24, 2009) on the ground
that the court lacked jurisdiction to hear the case.
We had prepared an article about the decision
201
based on the newspaper report, but it somehow
did not find its way into our September issue.
The lawsuit claimed that the federal Defense of
Marriage Act is unconstitutional, reciting a litany
of constitutional provisions. Judge Carter reportedly accepted the government’s argument that because the case was originally filed in state court, it
must be dismissed on the ground that the state
court has no jurisdiction to hear suits against the
federal government seeking declarations that federal statutes are unconstitutional. (The case
ended up before Judge Carter because the federal
government’s response to the filing of the complaint was to remove the case to federal court,
then to move to dismiss it.) Of course, the federal
court would have jurisdiction over such a claim as
an original matter, and Judge Carter pointed out
as much, indicating that the dismissal was without prejudice to the plaintiffs’ right to re-file the
case as a federal lawsuit. This means that, at most,
there would be a delay rather than an abandonment of the case, because Richard Gilbert, the
plaintiffs’ lawyer, announced that the suit would
be re-filed in federal court.
Gilbert represents Arthur Smelt and Christopher Hammer, a longtime couple who originally
filed a federal suit challenging the constitutionality of DOMA many years ago. That suit came to
grief when the U.S. Court of Appeals for the 9th
Circuit ruled that they lacked standing to challenge DOMA because they were not married
when that lawsuit was undertaken.
DOMA has two operative provisions: Section 2
says that no state is obligated to give full faith and
credit to same-sex marriages performed in other
states. Since the couple was not then married, this
provision did not adversely affect them in any
way. Section 3 says that the federal government
will not treat same-sex couples as married for any
purpose, even if they are legally married under
the law of a state. (When DOMA was passed in
1996, no state permitted same-sex couples to
marry, so this was entirely hypothetical.) Since
the Smelt-Hammer couple was not married,
again, the court said they were not adversely affected by the law. In order to have standing in federal court, a plaintiff must present a real case or
controversy, not a hypothetical case. Thus, court
said that only a married couple could challenge
DOMA.
In May 2008, the California Supreme Court
ruled that same-sex couples had a right to marry
under the California constitution. The ruling went
into effect in June 2008, and over the summer of
2008 Smelt and Hammer got married. Then the
public narrowly voted in November 2008 to
amend the California Constitution to end the right
of same-sex couples to marry there. A legal challenge was filed to this amendment (Proposition 8),
but it was upheld by the California Supreme
Court. However, that court said that Prop 8 was
not retroactive, and that the marriages that took
place during the period June-November 2008
prior to its enactment remained valid. Thus, for
202
purposes of California law, Smelt and Hammer
are validly married.
They filed their new lawsuit in December
2008, claiming that as a married couple they were
entitled to challenge the constitutionality of
DOMA. But they filed their lawsuit in state court,
because the federal court was unwilling to waive
the normal filing fees and the couple, who are disabled and have limited resources, did not want to
pay the federal court fees.
One wonders what their attorney, Richard Gilbert, was thinking in filing in state court. State
courts do not have jurisdiction over claims against
the federal government, which has only waived its
sovereign immunity in specific kinds of cases to
be heard in the federal court system. The Justice
Department removed the case to federal court and
then moved to dismiss it on jurisdictional
grounds, also making the argument (unnecessary
and, unfortunately, quite provocative) that DOMA
is constitutional. Their brief in support of the motion was so provocative on the merits that it threatened to alienate gay supporters of the Obama Administration. The President renounced the most
offensive arguments in that brief at a Gay Pride reception at the White House, and when the government filed its much toned-down reply brief to the
plaintiffs’ responsive brief on the motion, the
White House issued a statement reiterating the
President’s commitment to repeal DOMA.
This dismissal is merely a speed-bump, since
clearly the federal district court would have jurisdiction over a case filed directly in that court. Furthermore, at the very least it should be possible for
Smelt and Hammer to file a suit that appropriately
alleges some deprivation of rights under federal
law attributable to Section 3 of DOMA. (In support of its dismissal motion, the Justice Department argued that an alternative ground for finding
lack of standing was the failure to allege in the
complaint with any particularity that Smelt and
Hammer had actually been adversely affected by
DOMA.) It might be more difficult for them to assert a claim against Section 2, which does not
have any real operative force and is purely symbolic, as the states have always had the right to
refuse to recognize marriages that violate their
public policy, so if Smelt and Hammer were to
travel to another state and demand some form of
recognition, Section 2 of DOMA would not be the
reason they are turned down, although an intellectually lazy government official or court might
well purport to rely on it. A.S.L.
5th Circuit Divided Over Same-Sex Harassment
Case
A panel of the U.S. Court of Appeals for the 5th
Circuit voted 2-1 to affirm a decision by the U.S.
District Court for the Eastern District of Louisiana
to grant summary judgment to the employer on Title VII sex discrimination and retaliation claims
brought by a female employee complaining about
sexual harassment by a female co-worker. Love v.
November 2009
Motiva Enterprises, 2009 WL 3334610 (Oct. 16,
2009) (not selected for publication). The majority
concluded, in a per curiam order signed by Circuit Judges Reavley and Smith, that Connie M.
Love had failed to show that the alleged harasser
was a “homosexual,” and thus could not meet the
first test established by Oncale for same-sex harassment cases. It also concluded that disciplinary
actions taken by the employer were apparently
justified by the plaintiff’s poor job performance.
The record showed that the co-worker inflicted
the plaintiff with numerous insults related to her
physical appearance, especially her weight.
There was also unwanted touching, and the use of
derogatory language. The plaintiff offered hearsay
evidence concerning the harasser’s sexual orientation, but the court determined that the evidence,
even if believed, would not be conclusive on the
point. The court never went on to consider
whether the conduct was severe and pervasive
enough to meet the high bar set by Title VII precedent for actionable harassment and hostile environment.
Dissenting, Circuit Judge James L. Dennis argued that the court erred in upholding a summary
judgment when, in his view, the plaintiff had adduced sufficient evidence to create a factual
question requiring resolution at trial. Plaintiff’s
evidence showed a mixed of insulting and erotically tinged conduct by the harasser, especially after plaintiff returned to work after surgery being
much slimmed down. While Judge Dennis agreed
with the disposition of the retaliation claim, he
concluded that plaintiff should have been allowed
to proceed to trial on her sex discrimination and
hostile environment claims, finding that the majority had misconstrued Oncale to require a plaintiff in such a case to show that the harasser sexually desired the plaintiff. Dennis labeled this
interpretation a “faulty premise that an abuser
must focus on his victim in a desirous or lustful
way,” continuing: “Whether it is Sirey’s clearly
sexually motivated advances such as, for example, the rubbing of her private parts on Love’s
body or her insults and put-downs such as ‘sorry
excuse for a woman,’ ‘fat cow,’ ‘bitch,’ ‘failure as a
woman,’ ‘useless as a woman,’ and ‘[y]ou think
that’s a body you have,’ they were all aimed at
Love as a woman, i.e., ‘because of sex.’ For this
reason alone, I believe that Love has established a
submissible case that Sirey abused her ‘because
of sex.’”
In a footnote, Dennis charges the majority with
ignoring “that love-hate relationships, for example, are quite common and well documented,” so
the majority’s insistence that this could not be a
sexual harassment case because the harasser’s
comments were laced with insults embraced an
unduly narrow understanding of the situations
covered by Title VII.
Dennis also believed that Love’s allegations
were sufficient for a hostile environment case,
commented, “There is no doubt that Sirey’s advances were subjectively offensive to Love and
Lesbian/Gay Law Notes
would have been found to be objectively offensive
by a reasonable person in her shoes; as the majority correctly states, Sirey’s conduct was also ‘humiliating’; various of Sirey’s verbal assaults
were ‘threatening’; and there is significant evidence to create at least a factual issue as to
whether the harassment interfered with Love’s
work performance. Accordingly, Love has demonstrated that there is a genuine dispute as to the
material issue of whether she was subjected to a
hostile work environment.” A.S.L.
Gay Whistle-Blower Strikes Out in Discrimination
Claim Against Wal-Mart
U.S. District Judge Philip M. Pro granted WalMart’s motion for summary judgment in a Title VII
retaliation and Nevada sexual orientation discrimination claim brought by Charles Henderson.
Henderson v. Wal-Mart Stores, Inc., 2009 WL
3300256 (D. Nev., Oct. 14, 2009).
Henderson and his same-sex domestic partner,
who both worked for Wal-Mart, moved to Las Vegas in June 2006. Henderson got into trouble on
the job for truthfully reporting, in response to
questioning, that a male management official was
believed to have a sexual relationship with a female subordinate, in violation of Wal-Mart’s company policies on fraternization. Shortly after he
reported this matter, he requested permission
from his immediate supervisor to leave his shift
early because he had just learned his partner had
been unfaithful to him and he had to attend to certain family business. He received permission and
clocked out early, but when he showed up the next
day, he was told he was terminated for leaving his
shift early without proper permission. It seems
Wal-Mart does not authorize low-level supervisors to allow employees to leave early, and
Henderson had not sought permission from a
salaried management employee as required by
company rules, thus leaving his shift understaffed.
Henderson sued in federal court, claiming unlawful retaliation in violation of Title VII and appending a state law sexual orientation discrimination claim. On this claim, he asserted that he was
treated differently from straight employees, in
that they were freely given leave to deal with family matters, but he was terminated for taking time
for that purpose after obtaining permission.
Judge Pro found that Henderson had not made
sufficient allegations to meet the pleading requirement of showing he was treated differently
from similarly situated employees because of his
sexual orientation. While he alleged vaguely that
straight employees were treated differently from
him, the only concrete example he gave involved
a member of management who was allowed to
leave early to handle a family matter, and Judge
Pro opined that Henderson, a non-managerial
employee, could not maintain that he was similarly situated to a management employee in this
regard.
Lesbian/Gay Law Notes
Further, wrote Pro, “Even if Henderson has
demonstrated a prima facie case, he has not
shown that Wal-Mart’s real reason for terminating
him was discriminatory. Wal-Mart’s proffered legitimate, non-discriminatory reason for Henderson’s termination was his failure to seek or obtain
permission to leave work from a salaried manager.
Wal-Mart stresses that salaried managers have
authority that hourly managers do not, and that
[the manager who gave Henderson permission to
leave early] was an hourly manager, not authorized to allow employees to leave work early.”
Wal-Mart characterized what Henderson had
done as “walking off the job.” “A mere refutation
of the employer’s legitimate reason is insufficient,” insisted Pro, “It is not enough for the
plaintiff to prove that the asserted reason is false;
the plaintiff must show that it is both false and that
discrimination was the real reason,” who concluded that Henderson had not shown that his
sexual orientation was the real reason for his discharge. A.S.L.
DOMA and Pre-Trial Discovery
If a private company sues a former employee in
federal court under diversity jurisdiction, and that
former employee is a lesbian who married her
partner in Canada in 2005, and the lawsuit is
brought in the District of Iowa with an understanding that Iowa law will apply under the doctrine of Erie Railroad v. Tompkins, and Iowa has
permitted and recognized same-sex marriages
since last fall, can the defendant’s same-sex
spouse claim spousal immunity when summoned
to a pre-trial deposition? Guessing from hints in
somewhat vague newspaper reports, this may be
the question facing a federal court in Aviva USA v.
Stevens, now pending in the U.S. District Court in
Des Moines. Phyllis Stevens is accused of embezzling funds from the company for use in her political activities as a gay rights activist, and plaintiffs
seek to depose her wife, Marla. Marla is resisting
on spousal immunity grounds, but there is a question whether the marriage will be recognized for
that purpose by the federal court in light of the Defense of Marriage Act, which provides that for all
purposes of federal law only different-sex couples
can be considered to be married. However, under
the Federal Rules of Evidence (Rule 501), federal
courts in diversity cases are supposed to follow
state common law rules concerning privileges.
Nobody’s sure what the outcome will be on this,
but it provides an interesting illustration of the potentially far-reaching effects of DOMA. One suspects that this is not one of the effects flagged for
Congress when a study was conducted in 1996 as
DOMA was pending to see what federal laws
would be affected, since the study consisted of doing a full-text word search in the U.S. code, which
might not have turned this issue up. A.S.L.
November 2009
Federal Civil Litigation Notes
Supreme Court — The Supreme Court denied a
petition for certiorari in Liberty Counsel v. The
Florida Bar Board of Governers, 12 So.3d 183
(Fla. 2009), cert. denied, No. 09-276 (Oct. 13,
2009). The Florida Supreme Court had ruled that
the State Bar did not violate the constitutional
rights of members who disapproved of gay adoptions when it allowed its Family Law Section to file
an amicus brief in a pending case challenging the
state’s statutory ban on adoption of children by
gay adults. The Florida court premised its ruling
on the fact that the Family Law Section is a voluntary membership section, and its amicus brief activities are not supported by compulsory membership dues. Florida is a unified bar jurisdiction
where all practicing lawyers are required to pay
dues to the State Bar, but nobody is required to be
a member of a Section of the bar.
11th Circuit — Florida — In Beta Upsilon Chi
Upsilon Chapter v. Machen, 2009 WL 3429591
(11th Cir., Oct. 27, 2009), the court ruled that a
suit by a Christian fraternity against the University of Florida for refusing to extend official recognition because the chapter’s membership rules
violated the University’s non-discrimination policy — which includes sexual orientation — became moot when the University backed down in
the face of the lawsuit and amended its nondiscrimination policy to make an exception for organizations “whose primary purpose is religious.” The district court had denied a motion for
preliminary injunctive relief against the university, concluding that the University’s denial of
registration had not violated the group’s rights of
free speech or expressive association, finding that
unregistered student groups were free to associate
and speak, just without the imprimatur of university recognition. Under the amended policy, there
is no barrier to the group registering as an official
student organization, while continuing to formally
exclude homosexuals and atheists from membership.
California — An openly-gay police officer who
was denied a promotion to the Position of Commander after an interview with the mayor suffered
summary judgment of his sexual orientation and
discrimination charges in Smolinski v. City of Pacific Grove, 2009 WL 3353327 (N.D.Cal., Oct. 16,
2009). The short opinion by District Judge Ronald M. Whyte asserts that plaintiff failed to allege
a prima facie case of hostile environment harassment, or that the denial of promotion was tied in
any way to his sexual orientation. While the court
conceded that plaintiff had been subjected to
anti-gay comments by co-workers, it did not consider the evidence sufficient to suggest that the
workplace had been intolerably polluted. The
court also rejected emotional distress claims, and
a claim that a former police chief had tortiously
interfered with the promotion process by giving a
negative recommendation against the plaintiff’s
promotion to the mayor. Plaintiff also unsuccess-
203
fully charged procedural irregularities, claiming
that prior applicants for similar promotions had
not been required to have a personal interview
with the mayor, who made the decision not to promote him. The court noted that the official who
made the decision against promotion the plaintiff
had alleged without contradiction that when he
made the decision he didn’t know that plaintiff
was gay.
California — U.S. District Judge Barry Ted
Moskowitz (S.D.Calif.) has denied a motion to dismiss a federal civil rights claim that a pattern and
custom of anti-gay bias among San Diego Port
District employees resulted in the death of Alan
Hirschfield, who died of a gunshot wound in the
back from District Officer Clyde Williams.
Hirschfield v. San Diego Unified Port District,
2009 WL 3248101 (Oct. 8, 2009). As briefly
summarized by the court, Steven “either jumped
or fell from a cruise ship into the San Diego Bay”
on July 19, 2008. Officer Williams and another
officer, Wayne Schmidt, “pulled Steven into their
patrol boat. Some sort of struggle ensured, the
facts of which are in dispute. At some point, Officer Schmidt deployed a taser against Steven, and
Officer Williams shot Steven in the back, resulting in Steven’s death.” Plaintiffs, apparently Steven’s parents, brought a 42 USC 1983 action
against Williams, and state law assault and battery, negligence and wrongful death allegations
against Williams, Schmidt, and the Port District.
In pursuit of their claims against the District, they
alleged the existence of “District policies, procedures, customs, and practices which promoted (1)
use of excessive and unreasonable force against
individuals, particularly individuals perceived to
be gay; (2) the unnecessary use of tasers; (3) violations of the constitutional rights of individuals
believe to be gay; (4) concealment of evidence of
police misconduct; and (5) fabrication of police
reports and/or providing false statements in police reports and during the investigation of police
misconduct.” In moving to dismiss this part of the
case, the District argued that they are “inflammatory and conclusory” and that no facts were alleged establishing a “causal link between Defendants’ actions and any policies or customs of the
Port District.” Judge Moskowitz found that 9th
Circuit precedent supports allowing such claims
to survive a dismissal motion, citing to KarimPanahi v. Los Angeles Police Dept., 839 F.2d 621
(9th Cir. 1988). We wonder whether the 9th Circuit might reconsider Karim-Panahi in an appeal
of this case, in light of the recent infamous Iqbal
ruling which seems to have significantly tightened up pleading standards for federal civil litigation.
Michigan — A sign of the past: In Williams v.
Costco Wholesale Corporation, 2009 WL
3335296 (E.D. Mich., Oct. 15, 2009), U.S. District Judge Sean Cox ruled that an HIV+ employment discrimination plaintiff was not a person
with a “disability” under the statute when his
physician testified that his viral load and T-cell
204
numbers were good and he had no AIDS-related
symptoms, and thus a claim under the Americans
with Disabilities Act would be decided against
him. The operative facts predate the recent ADA
amendments under which HIV infection would be
presumptively covered.
New Jersey — An openly gay state prison inmate who alleged that he was raped by two other
inmates and then subjected to discriminatory
treatment by prison officials may pursue various
aspects of his federal suit under 42 USC sec.
1983, ruled District Judge Faith Hochberg in executing the mandated judicial review of complaints
failed by inmates alleging violations of their constitutional rights. Thrower v. Alvies, 2009 WL
3245918 (D.N.J., Oct. 7, 2009). The inmate complains that although he was provided with medical career reasonably promptly, he was then deprived of medication that had been given to him to
prevent secondary infection, as a result of which
he developed an anal rash that required additional treatment, and that prison officials took no
steps to find and punish his assailants. An investigator sent to interview him instead insulted him,
and prison officials turned away his complaints by
stating that as an openly gay prisoner he probably
enjoyed being raped. When his family members
approached a government official seeking an investigation of his treatment, they were treated
flippantly. Perhaps no surprised that this story unfolds in Hudson County Correctional Center...
Judge Hochberg found that the pro se plaintiff had
managed to meet the stringent pleading requirements recently set by the Supreme Court in its
controversial ruling in Ashcroft v. Iqbal, 129 S.Ct.
1937 (2009), and would be allowed to pursue his
claim under the 8th Amendment for deprivation
of medication and retaliation for engaging in the
protected activity of seeking redress through the
system by complaining about his treatment.
New York — In Lueck v. Progressive Insurance,
Inc., 2009 WL 3429794 (W.D.N.Y., Oct. 19,
2009), District Judge Michael A. Telesca granted
a motion to dismiss a hostile environment workplace complaint that seems based almost entirely
on an offensive email sent around the office by a
member of the employer’s management team, depicting plaintiff as a gay man watching gay porn
on-line. “The case law makes clear that the sending of a single offensive e-mail does not create a
hostile work environment,” wrote Judge Telesca.
A single e-mail cannot by itself show that the
workplace is permeated with hostility. The court
also dismissed claims under Sec. 1981, finding
no allegation of race discrimination in the case,
and negligence and negligent infliction of emotional distress claims, finding such claims against
an employer are preempted by the Workers Compensation law.
Tennessee — A gay Tennessee man suffered
dismissal of his suit claiming he had been subjected to unlawful sexual orientation discrimination by his employer and his union in violation of
Title VII of the Civil Rights Act of 1964 and the
November 2009
Labor Relations Management Act. Gilbert v.
Country Music Association, Inc., 2009 WL
3156698 (M.D.Tenn., Sept. 29, 2009). Gilbert
claimed to have suffered anti-gay slurs and discriminatory on-the-job treatment, as well as discrimination from the Local Union in its operation
of the hiring hall under which he sought employment as a union member. Judge William J. Haynes, Jr., found that binding 6th Circuit precedent
required dismissal of the sexual orientation claim
under Title VII, which has been held not to apply
to cases of sexual orientation discrimination as
such. In addition, he noted, Gilbert had not exhausted internal union remedies, which are prerequisite to his claims against the union. The record showed that Gilbert’s internal union
grievance was still pending in the internal appeal
process when he filed his federal complaint. He
had recently received a “right to sue” letter from
the EEOC, which had not yet been received when
he filed his initial complaint. Gilbert had asked
for permission to file an amended complaint, but
given the state of Title VII law and the pendency
of the internal grievance, this would be futile at
best. The mythology that Title VII protects gay
people persists — and is even perpetrated by
public officials who opposed gay rights laws by
saying that existing law provides adequate protection — but federal district courts are generally not
taken in by the mythology.
State Civil Litigation Notes
California — Estrada v. Delhi Community Center,
2009 WL 3359194 (Cal.App., 4th Dist., Oct. 20,
2009) reports on new developments in ongoing
litigation rooted in what had been previously determined in an unpublished decision to be a coerced sexual relationship between a married
woman executive director of a non-profit and an
openly-lesbian non-citizen subordinate who was
dependent on the employer to maintain her green
card and legal status in the U.S. In this opinion,
the court affirms the trial court’s order dismissing
the plaintiff’s wrongful termination/sexual harassment/emotional distress action against the employer, as a sanction for discovery abuse.
Missouri — Missouri Lawyers Media reported
Oct. 26 that the city of St. Louis had paid $80,000
to settle a lawsuit brought by a missionary group
in response to a police threat to arrest two missionaries who persisted in distributing Gospel
tracts at a St. Louis gay pride festival in 2007. The
missionaries claimed a violation of their First
Amendment rights, in a lawsuit filed in April
2008 in the U.S. District Court, seeking damages
and injunctive relief. Federal District Judge
Henry E. Autrey had entered a preliminary injunction to allow the group to distribute its literature at the 2008 PrideFest, and the parties agreed
to making it a permanent injunction, subsequent
to which the St. Louis Board of Alderman repealed the ordinance under which the arrest
threats were made. The settlement bars the city
Lesbian/Gay Law Notes
from re-enacting a ban on distributing literature
in public places. The ACLU represented the missionaries.
New Jersey — A lesbian employee charging retaliation and hostile environment discrimination
on the basis of sexual orientation in violation of
the New Jersey Law Against Discrimination suffered affirmance of an adverse summary judgment ruling premised on the statute of limitations
announced by the Appellate Division on October
19. Stahl v. State of New Jersey Department of Human Services, 2009 WL 3429795. The court rejected appellant’s claim that the continuing humiliations she suffered after being transferred to
an inferior position in response to her complaints
about discriminatory treatment resulted in a continuing violation, or that the state’s inadequate investigation of her charges continued into the two
year period prior to her filing of a complaint. The
court observed that there was New Jersey Appellate precedent directly on point rejecting a continuing violation argument based on the continuing effects of a discriminatory transfer.
Oregon — In English v. Public Employees Retirement Board, 216 P.3d 342 (Or. Ct. App., Sept.
2, 2009), the court remanded to the Board
(PERB) for reconsideration the Board’s refusal to
allow two retired public employees who have terminated their relationships with their same-sex
domestic partners to exercise an option to change
their beneficiary designations under the retirement plan so as to cancel their former domestic
partners’ entitlement to receive a benefit after the
retired employee’s death (and, coincidentally, to
increase the monthly retirement benefit paid to
the employee during their lifetime). PERB took
the position that the retired employees could not
make the change because the statute allows such
a change in only three circumstances: (1) that the
option be exercised within 60 days of receiving
retirement benefits; (2) that the option be exercise
upon the death of the designated beneficiary, or
(3) that the option be exercised upon divorce of
the beneficiary from the employee. In both cases,
the employees had retired and begun to receive
benefits for a few years before their relationships
with their long-time domestic partners ended, and
then they sought to remove the beneficiaries so
that they could receive a full retirement benefit.
(When a beneficiary is named for entitlement to
survivor benefits, the employee receives a smaller
monthly benefit while alive.) PERB also argued
that it could not allow these beneficiary changes
because it might endanger the plan’s qualified tax
status under the federal Internal Revenue Code.
An administrative judge had ruled that PERB’s
action violated the equality requirements of the
Oregon constitution, but PERB refused to comply
with the ruling so the case went to court. The court
found that PERB had failed to find that denying
this change was required to maintain the plan’s tax
status, merely that it had suggested this might be
the case, and noted that under the statute PERB
was only mandated to take actions that are re-
Lesbian/Gay Law Notes
quired to preserve the tax status, so a remand
was necessary for PERB to reconsider its position, taking into account the requirement that
upon a finding that a policy violates the state constitution, the agency is supposed to make a decision consistent with what the legislature would
have intended, and the legislature has, in general,
mandated equal benefits rights for same-sex domestic partners of public employees.
Criminal Litigation Notes
Massachusetts — Provincetown is generally seen
as a gay-friendly secure place to vacation, but the
Cape Cod Times (Oct. 9) reports that Eric Patten,
20, has pled guilty to assaulting two young lesbians over Memorial Day weekend, the first recorded hate crime in the town in more than ten
years. Patten was sentenced to 30 days jail time
and several years of probation, and will do the jail
time in the Barnstable County Correctional Facility. The incident in question occurred about 1 am
on May 23, when pedestrians alerted police, who
arrived on Commercial Street near the Post Office
to apprehend Patton punching one woman on the
ground, while the woman’s female friend had Patten in a headlock. According to the police investigation, Patten had accosted the women on the
street, asking if they were faggots and then initiating physical violence. He resisted arrest and had
to be pepper sprayed to subdue him on the scene.
Patten claimed in court to have no memory of the
assault, and apologized to the women. His attorney characterized him as a “troubled young
man.”
Virginia — Rejecting a petition for a writ of habeas corpus from a Virginia inmate convicted of
“carnal knowledge of a minor,” U.S. District
Judge Gerald Bruce Lee held in MacDonald v.
Johnson, 2009 WL 3254444 (E.D.Va., Oct. 9,
2009), that Lawrence v. Texas did not override Virginia’s laws criminalizing sex between adults and
minors. In this case, plaintiff, a man in his 40s,
was convicted of having sex with two teenage
girls, ages 16 and 17. Although girls of those ages
might be considered adults under the laws of
some states for purposes of consent to sex, they
are considered minors under Virginia law. Since
Lawrence does not apply to sex involving minors,
wrote the court, the statute is not unconstitutional
as applied to the petitioner.
Wisconsin — The 7th Circuit denied an appeal
from a ruling by Chief Judge Charles N. Clevert,
Jr., of the Eastern District of Wisconsin, rejecting
a petition for habeas corpus from Larry George,
who was convicted on two counts of second degree
sexual assault by use of force and one count of
false imprisonment. At trial, prosecutors offered
testimony that George had abducted a heterosexual man and forced him to perform oral sex on
George. After unsuccessfully exhausting his state
court appeals, George sought habeas corpus,
claiming ineffective assistance of counsel. It
seems that his lawyer had failed to cross-examine
November 2009
the victim on the issue of the victim’s sexual orientation. During direct examination by the prosecutor, the victim was asked about his sexual orientation and said he was heterosexual. George
claims that his defense attorney had information
that could contradict that assertion, but failed to
question the victim about it. The court expressed
some bafflement about the relevance of contradicting that testimony, since George’s defense was
not based on a consent argument. The entire story
of what happened as retailed by Circuit Judge
Tinder in the opinion is complex. See George v.
Smith, 2009 WL 3428834 (7th Cir., Oct. 27,
2009).
Legislative Notes
Federal — The Commission on Military Justice, a
body created by the National Institute of Military
Justice and the American Bar Association to
study and report on the state of U.S. military justice, has issued its second report. Like the first report, issued in 2001, the new Cox Commission report, issued on October 20, calls for repeal of
Article 125 of the Uniform Code of Military Justice, the sodomy law governing the armed forces.
The Commission points out that the law as written
is of questionable constitutionality in light of
Lawrence v. Texas, the 2003 U.S. Supreme Court
ruling striking down the Texas Homosexual Conduct Law, and that recent amendments to the
UCMJ provisions on rape and other UCMJ provision should take care of maintaining criminal
penalties on sexual misconduct involving lack of
consent, adultery or minors. In other words, says
the Commission, there is no sense keeping on the
books a law whose constitutional applications are
covered by other provisions, and which is not generally and should not ever be enforced against
consenting adults who conduct their activities in
private. The report is available in pdf file format
on the NIMJ website, under the link for Cox Commission, named for the chair, Honorable Walter T.
Coxx, III, Senior Judge of the U.S. Court of Appeals for the Armed Forces.
Federal — It appears that Senator Joseph Lieberman, Independent from Connecticut who generally caucuses with the Democrats, will be the
lead sponsor on a Senate counterpart to Rep.
Tammy Baldwin’s bill to extend spousal benefits
to same-sex partners of federal employees. Lieberman announced that he would attempt to get a
bill to the Senate floor before the end of 2009, and
would expect to hold hearings soon. The bill has
been approved by the House subcommittee that
oversees federal workforce policies, and is pending before the House Committee on Oversight and
Government Reform, where a full committee
mark-up was expected. Lieberman has enlisted
25 co-sponors for the bill, including one Republican, Sen. Susan Collins (R-Maine) and 24 Democrats. Lieberman said that the bill was aimed at
broadening the pool of people who could be recruited to work for the federal government, point-
205
ing out that most Fortune 500 companies provide
such benefits “because it both attracts and keeps
the best employees.” The Hill.com, Oct. 11.
California — Responding to a footnote in the
California Supreme Court’s decision in Strauss v
Horton, 207 P.3d 48, 46 Cal.4th 364 (Cal., 2009),
in which the Court had ruled that same-sex couples who married in California prior to the passage of Proposition 8 would continue to be considered married in California, the legislature has
enacted Senate Bill 54, introduced by Mark Leno,
under which same-sex couples who were married
outside California prior to November 5, 2008 (the
day Prop 8 went into effect) will also be entitled to
have their marriages recognized in California. In
addition, picking up on another point in the
Strauss opinion, the measure provides that samesex couples married outside of California after
Nov. 5, 2008, will be entitled to all of the rights
and benefits of marriage, just not the name of
“marriage” for their relationship. The measure
passed the Assembly on September 3, the Senate
on September 9, and signed into law by Governor
Arnold Schwarzenegger on October 12. It amends
Family Code section 308. ••• The San Francisco
Chronicle reported on Oct. 13 that the Governor
had also signed a measure to increased funding
for domestic violence prevention programs in the
LGBT community, but had vetoed a measure intended to allow transgender people who were born
in California but were living outside the state to
seek new birth certificates. Schwarzenegger said
he vetoed this eminently-practical-sounding
measure because he believes that a recent Californai court of appeal decision makes it unnecessary.
California — Maybe Harvey just got too famous to ignore? After having vetoed a prior iteration of the measure, on October 12 Governor
Schwarzenegger signed into law Senate Bill No.
572, introduced by Mark Leno, which had passed
the Assembly on September 3 and the Senate on
September 8, providing that Sections 37222 of
the Education Code and Section 6721 of the Government Code be changed to reflect a newly designated special day in California, Harvey Milk
Day, to be celebrated each year on the anniversary
of Harvey Milk’s birth. Milk, born in the NYC
suburbs in 1930, was the first openly-gay man to
be elected to office in a major city government
when he won election to the San Francisco Board
of Supervisors in 1977. In that position, he led the
successful fight for the passage of a city ordinance
banning sexual orientation discrimination and
provided leadership in the campaign to defeat the
Briggs Initiative, a measure that threatened the
employment of LGBT public school teachers.
Milk was assassinated by political rival Dan
White on November 27, 1978.
Florida — The Tallahassee Democrat (Oct. 29)
reported that the Tallahassee, Florida, City Commission voted unanimously to include same-sex
and domestic partnerships in the employee benefits policy for city workers. “Significant others”
206
who meet the requirements can be covered regardless of gender or sexual orientation. Employees will be required to provide some proof of their
relationship, such as joint rental leases or a mortgage and joint bank accounts. At the same time,
the Commission voted to include sexual orientation and gender identity in the city’s antidiscrimination and anti-harassment polices.
Law & Society Notes
Federal — Military Policy — Former Congressman John McHugh, a New York upstate Republican who is now serving as Secretary of the Army in
the Obama Administration, told the Army Times
in an article published Oct. 25, that there were no
reasons to fear that major difficulties could result
from lifting the ban on gay soldiers, and that when
a change of policy took place, it would be implemented by the Army command. “The Army has a
big history of taking on similar issues,” he said,
with “predictions of doom and gloom that did not
play out,” according to a Reuters summary of the
interview published on Oct. 26.
Federal — Immigration Policy — Attorney
General Eric Holder failed to act on an asylum request on behalf of Genesio Oliveira, a gay Brazilian who was married in Massachusetts to U.S. citizen Tim Coco. In 2002 Oliveira’s request for
asylum in the U.S. was denied. He subsequently
married Coco when same-sex marriage became
available in Massachusetts, but the federal government does not recognize the men as being
spouses due to the Defense of Marriage Act, an
unconstitutional statute whose repeal was a campaign promise by Barack Obama, a promise he
has reiterated in public several times since taking
office but has not done anything public to advance
beyond talking. Oliveira was deported to Brazil,
and the men have had to live apart. A petition for
asylum on a compassionate basis was pending
with the Attorney General, but the deadline for
ruling on it passed with no word from the Justice
Department, according to media reports on October 27.\
Federal — Health & Human Services — The
U.S. Department of Health & Human Services announced on Oct 22 that it will be creating a national resource center to assist communities in
providing services and support to LGBT elders.
The LGBT Center is intended to provide resources to social services agencies to assist them
in providing appropriate services to a target population with which they may not be familiar, and
also to assist LGBT organizations in connecting
with available services. The Administration on
Aging will award a single Resource Center grant
at about $250,000 annually to fund a non-profit
organization to create and administer the Center.
HHS will publicize the grant application process
through its website.
Federal — Housing Policy — The U.S. Department of Housing and Urban Development announced on Oct. 21 that it will be proposing rules
November 2009
to ensure that LGBT applicants and same-sex
couples are not excluded from participation in
federally subsidized housing programs. Among
other things, the proposed rule will clarify that
programs for “families” include families consisting of same-sex partners, and will require grantees to comply with all state and local laws that forbid discrimination based on sexual orientation
and/or gender identity, as well as requiring that
FHA-insured mortgage loan decisions be made
based on credit-worthiness and not engage in
categorical exclusions of sexual minorities. At
present, the Fair Housing Act does not prohibit
discrimination based on sexual orientation or
gender identity, and legislative efforts at the federal level to address anti-gay and anti-transsexual
discrimination have been concentrated on the
narrowly-focused Employment NonDiscrimination Act. The Oct. 21 announcement
by HUD Secretary Shaun Donovan of this proposed rule-making signals the importance of adding Fair Housing Act amendments to the LGBT
federal legislative agenda.
Alabama — The University of Alabama at Birmingham will extend health insurance benefits to
same-sex partners of its employees effective
January 1. Enrollment has already been opened
for faculty and staff to enroll their partners in
medical, dental and vision plans. The administration indicated that the measure was designed in
part to help the school compete with other major
medical schools in recruiting faculty, since many
of the top medical schools are affiliated with universities that provide such benefits.
Hope College, Holland MI — We’re a college,
don’t bother us with differing points of view,
seems to be the attitude of administrators at
Christian-identified Hope College who barred
Academy Award-winning screenwriter Dustin
Lance Black from participating in a college
roundtable on sexuality, to which he had been invited by students. The English Department had
also invited Black to speak to a screenwriting
class. But College officials disinvited Black from
the roundtable, the Dean of Students stating that
strongly-opinionated speakers don’t further academic discourse. Pardon us for having a point of
view! Holland Sentinel, Oct. 24.
Virginia — Republican gubernatorial candidate Bob McDonnell announced on Oct. 13 that if
he was elected, he would no renew the executive
order issued by prior governors Mark Warner and
Tim Kaine mandating non-discrimiantion on the
basis of sexual orientation for state job applicants.
McDonnell insisted that there would be no discrimination in his administration, but he believes
that for the governor to adopt such a policy without
legislative authority violates separation of powers.
He also insisted that he had not discriminated on
this basis during his service as state Attorney
General. McDonnell’s Democratic opponent,
State Senator Creigh Deeds, was a sponsor of a bill
that would have added sexual orientation to the
Lesbian/Gay Law Notes
state’s civil rights law. Lynchburg News & Advance, Oct. 14.
International Notes
Brazil — The Supreme Justice Tribunal, Brazil’s
second highest appellate court, ruled on Oct. 15
that transsexuals who have undergone gender reassignment surgery are entitled to change their
name and the gender indication on their birth certificates. A lower court had ruled that the data entered on a birth certificate is “immutable” and
cannot be changed to reflect later developments
in a person’s life, as it is a historical record from
the time of birth, and that someone’s “appearance” does not supersede these facts at birth. But
the appellate court found this to be contradictory
with the state’s policy of providing free gender reassignment surgery. The National Health System
only recently added gender reassignment services to the list of covered procedures.
Colombia — An appellate court in Pereira, Columbia, ruled in Girardo v. Alzate that when
same-sex couples split up, the former partners are
entitled to an equal distribution of belongings, the
same as married opposite-sex partners. The case
was an application of a ruling last January by the
Colombian Supreme court on equal legal rights
for same-sex couples, according to a recent blog
posting, and overturned a trial judge decision. Julio Girardo’s attorney, Fabio Girardo Sanz, said
the ruling set a national precedent and could apply in other regions, according to a report on Oct.
13 in El Tiempo that was summaried on an
English-language blog. Although the state does
not yet afford civil unions or marriages for samesex couples, the courts have been using equality
principles on a case-by-case basis to deal with legal issues arising from same-sex relationships.
European Community — The European Court
of Human Rights has announced that the First
Section of the Court will hear oral arguments on
January 14 on the admissibility and merits of a
case coming from Austria concerning the right of
same-sex couples to marry. Although the Court
has already pronounced itself on the rights of
transsexuals regarding marriage, a ruling that led
the U.K. to adopt its Gender Recognition Act, it
has not previously made a direct ruling on samesex marriages. The application on behalf of Horst
Schalk and Johan Kopf, Austrians who were denied permission to marry when they applied in Vienna in 2002, asserts a violation of Articles 12
and 14 of the European Convention on Human
Rights. As the decision to review rulings by national courts is discretionary, the scheduling of
this hearing sends a hopeful signal that recent developments have led the Court to consider
whether it is time to strike out on new ground. The
European Court is famous for waiting until a consensus has begun to emerge among member states
before identifying “new rights” under the Convention. Now that several countries in Europe allow same-sex marriage or an equivalent status
Lesbian/Gay Law Notes
(such as the U.K.’s civil partnership) and others
have allowed various forms of legal recognition for
same-sex couples falling short of full marriage,
such as France’s pact civile, the Court may decide
that a European consensus has emerged that
same-sex couples are entitled to a legal status
equivalent to marriage or even outright to marriage, which would then put the onus on noncomplying states to revise their national laws accordingly. Schalk & Kopf v. Austria, Application
No. 30141/04 (hearing scheduled for Jan. 14,
2010).
Germany — In a ruling being hailed as a landmark by German gay rights groups, the nation’s
highest court, the Constitutional Court in Karlsruhe, has declared that pension laws are unconstitutional to the extent they don’t provide equal
treatment between same-sex registered partners
and married couples. Germany affords same-sex
couples civil partnership status that carries many
rights of marriage, but not adoption rights and
preferential tax treatment. Wolfgang Duysen went
to court to seek a declaration that treating the right
of him and his partner differently from the rights
of married German couples violated the equal
protection obligation of Article 3 of the German
Constitution. The government’s defense was that
maintaining differences between marriage and
partnership was required to comply with Article
6.1, which provides special state protection to
marriage and the family. The court rejected this
argument, finding that the Article 3 requirement
was overriding, and that it did not follow that according equal pension rights to same-sex registered civil partners was somehow a failure to protect marriage and the family. Irish Times, Oct. 24,
2009.
November 2009
Malaysia — An attempt by Anwar Ibrahim to
pursue an appeal of his defamation suit against
former Prime Minister Mahathir Mohamed was
rejected by the Court of Appeal, according to an
Oct. 21 report in the Malaysia Business Times.
Mohamed has allegedly made statements indicating that Ibrahim is homosexual, which Ibrahim
denies, contending the statements are politically
motivated. Mohamed moved to have the appeal
thrown out on the grounds that the papers submitted were only in English, in violation of court
rules.
Sweden — Sweden opened up the right to
marry to same-sex couples in May. On October
22, priests of the Church of Sweden voted 176-62
to allow priests of the church to conduct wedding
ceremonies for same-sex couples.
Uganda — Human rights groups protested the
introduction in parliament on Oct. 14 of the socalled “Anti-Homosexuality Bill,” a measure intended to demonize and stamp out any movement
to reform the law regarding homosexuality in the
country. In addition to imposing penalties on anybody found guilty of “promoting homosexuality,”
it imposes a mandate on residents to report to
authorities anybody they believe to be gay,
authorizing penalties of up to three years imprisonment for failing to make such a report. Uganda
still has on its books a harsh sodomy law that survives from British colonial times, with sentences
of up to 14 years for acts of sodomy. The new bill
would increase the minimum prison term for homosexual sodomy to life, and mandate the death
penalty for “aggravated homosexuality.” It also
calls upon the country to nullify any international
or regional treaty commitment that might be contradictory to the mandates of the antihomosexuality law. Somebody in Uganda appar-
207
ently wants to rid the country of many of its most
talented people.
Professional Notes
David Huebner, an openly gay attorney based in
Shanghai as head of the China Practice and International Disputes Practice for the firm of Sheppard Mullin Richter & Hampton, and formerly a
partner and chairman of Coudert Brothers, has
been nominated by President Barack Obama to
be the United States Ambassador to New Zealand
and the Independent State of Samoa. Huebner is
the first openly-gay appointee of ambassadorial
rank in the Obama Administration. In addition to
his private sector practice credentials, Huebner
has served as chair of the California Law Revision
Commission, taught at USC Law School, and has
served on a volunteer basis as General Counsel to
the Gay & Lesbian Alliance Against Defamation,
on whose board he also has served.
Ken Choe, an openly gay attorney who has been
working as Senior Staff Attorney for the LGBT
Rights & AIDS Projects of the American Civil
Liberties Union, has resigned to accept an appointment as Deputy General Counsel of the U.S.
Department of Health and Human Services in
Washington, D.C.
President Obama has nominated Sharon
Lubinski, an openly-lesbian assistant chief of the
Minneapolis Police Department, to be a new U.S.
Marshall for Minnesota. If confirmed, she would
be the first openly LGBT individual to serve as a
U.S. Marshall. The U.S. Marshall Service is the
enforcement arm of the federal judicial branch,
providing security for the court system, transporting prisoners between courts and federal prisons,
and performing a variety of tasks associated with
the operation of the courts, including serving legal
papers on parties in litigation.
AIDS & RELATED LEGAL NOTES
Discharged HIV+ Bank Employee May Pursue
Suit against JP Morgan Chase
U.S. District Judge Jeffrey S. White ruled in
Halsey v. JP Morgan Chase Bank, 2009 WL
3353459 (N.D.Cal., Oct. 16, 2009), on summary
judgment motions in a case involving a bank account executive who was discharged just days after he informed his supervisor that he was HIV+.
Judge White found that James Halsey had alleged
a prima facie case of disability discrimination under California law, but granted summary judgment on his sexual orientation discrimination
claim, accepting at face value the employer’s argument that the supervisor who made the discharge decision did not know that Halsey was gay
when he made the decision, and expressed surprise at the news.
Chase Bank hired Halsey as a new account executive in May 2006 and put him into a training
program. Halsey was receiving good reviews for
his work, and was outperforming other newlyhired account executives, but ran into trouble
when his supervisor noted that he seemed to be
dozing off during training programs. Halsey’s immediate response was that this could be the result
of his having had several long airplane flights just
prior to the training meeting. But on reflection, he
realized it was probably due to his new HIV-meds,
and confirmed this with his doctor. Then Halsey
informed his supervisor, through an email, that he
was HIV+ and that new medications he was taking could affect his energy level, quoting his doctor to that effect.
Receiving this news coincided with a complete
change in the supervisor’s behavior to Halsey.
Halsey had previously been invited to dine that
night with the supervisor and some other employees, but when he showed up at the appointed
place and time, nobody was to be found and nobody was answering their cell phones. Halsey
later learned that the supervisor had changed the
time and location without notifying him and had
instructed all those present to turn off their cell
phones. In the following days, the supervisor
shunned contact with Halsey or looked away from
him when contact was inevitable. After consulting
with Human Resources, the supervisor discharged Halsey, relying mainly on his having
dozed off during a training session. Afer Halsey
was dismissed, he also revealed to the supervisor
that he was gay.
In moving for summary judgment, Chase argued that it could discharge an employee who fell
asleep on the job, citing several cases to that effect, although none was a 9th Circuit decision.
Judge White found the cases from other circuits to
be distinguishable. There is a substantial body of
case law supporting employers in discrimination
cases where they discharged employees who fell
asleep on the job, but those cases mainly concerned situations where falling asleep presented
an immediate safety risk, usually because the em-
208
ployee’s job involved operating equipment that
could be dangerous if not properly attended. In
this case, wrote White, the issue was really
whether JP Morgan Chase could have accommodated Halsey’s disability, which could be held to
incorporate the drowsiness allegedly caused by
his HIV meds. White noted the failure of Chase to
initiate any kind of interactive process with
Halsey to determine whether there was a reasonable accommodation. White also noted that
Chase’s credibility in the case was strained by the
conduct of the supervisor, which could support an
inference that he was biased against Halsey due
to his HIV status, since Halsey was receiving
good reviews and there was no indication that the
supervisor had any thought of terminating him
until he learned that Halsey was HIV+.
The court refused to grant cross-motions for
summary judgment on the claim of failure to engage in reasonable accommodation, finding that
material fact issues precluded judgment on those
motions. The court did grant summary judgment
in favor of the employer on the sexual orientation
discrimination claim, as well as on a claim for intentional infliction of emotional distress, finding
that California courts have not imposed liability
on such claims for personnel actions, saving that
tort for the most outrageous conduct.
Christopher B. Dolan, Rachel Mary Pusey, and
Shawn R. Miller of the Dolan Law Firm of San
Francisco represented Halsey. A.S.L.
State May Be Liable for Exposing Boxing Referee
to HIV
In Corona v. California, 2009 WL 3401918 (Cal.
App. 4th Dist. Oct. 23, 2009), a boxing referee
and his wife appealed a trial court decision dismissing their suit, sustaining the State’s demurrer, and holding that the State could not be held liable for failing to require a boxing license
applicant to provide evidence of negative HIV
status before granting approval to box.
The trial court held that the licensing power is a
discretionary activity, and thus, the State is immune from liability. The 4th District Court of Appeal, in an opinion by Judge Ramirez, reversed
the decision of the trial court, holding that state
law imposed a duty on the State to require a negative test result before issuing a license.
The facts are straightforward. After officiating
at a fight, plaintiff boxing referee received a letter
informing him that one of the fighters subsequently had tested positive for HIV, and that the
fighter “was licensed and allowed to fight without
having the results of the blood tests for detection
of HIV.” California Government Code sec. 815.6
provides that a boxer “shall present documentary
evidence” of a negative HIV test (among other
blood-borne illnesses) before being licensed to
box.
The State argued that because the act of sanctioning boxing matches involved the “issuance of
a license, permit, approval, or authorization,” the
November 2009
State was immune from liability under California’s Tort Claims Act. The State also claimed that
the duty to provide a negative test result fell on the
boxer, not on the State. Plaintiffs, in contrast, argued that the State was acting outside its authority
when it issued the license because its authority
had been made contingent on first obtaining a
negative test for HIV.
The court ruled for the plaintiffs, holding that
the statute requiring the HIV test “imposes a
mandatory duty upon the Commission to refrain
from sanctioning a boxer who does not provide a
negative HIV test.” Contrary to the state’s argument in favor of absolute licensing immunity, the
court held that immunity only covers discretionary actions and not mandatory duties. The court
reversed the trial court order and remanded the
case, awarding costs to plaintiffs.
Law offices of John Burton represented plaintiffs. Daniel Redman
AIDS Policy Note: Ryan White Reauthorization
and HIV Travel Ban
At a White House ceremony on October 30, President Barack Obama signed into law the fourth reauthorization of the Ryan White Care Act, a federal statute providing financial assistance to
states, localities and individuals coping with the
HIV/AIDS epidemic. The Act is named for a
young diabetic from Indiana who contracted HIV
from his medication and became a national symbol after he encountered discrimination at school
and in his community and fought back to advance
sound HIV policy. In his remarks prior to signing
the bill, the President announced that the final
regulation repealing the HIV travel ban would be
published on November 2, set to go into effect
early in 2010. In the meantime, administrative
steps have been taken to suspend the effect of the
ban on current U.S. residents who might be subject to deportation or denial of continued legal
status in the U.S. due to their HIV status. The
President also commented that the Office of National AIDS Policy has been holding hearings
around the country and is in the process of drafting a proposed new National HIV/AIDS Policy to
get federal government efforts to deal with
HIV/AIDS coordinated. The President’s statement suggested that a comprehensive revision of
national policy is in the offing, although he did not
announce a date by which this assignment will be
completed by the Office. A.S.L.
AIDS Litigation Notes
California — A criminal defendant with AIDS
seeking a reduction of sentence bore the burden
of presenting evidence about his medical condition and prognosis, ruled the 2nd District Court of
Appeal in People v. Kennedy, 2009 WL 3284230
(Oct. 14, 2009). In this case, defendant was convicted by a jury of selling a controlled substance,
and admitted having committed a prior offense
Lesbian/Gay Law Notes
that was a “strike” under California’s three-strike
system. He was sentenced to 6 years, a doubling
of what the sentence would have been with no
prior strike. On appeal, he argued that the court
abused its discretion by failing to strike his prior
conviction from consideration on the grounds of
his health, but his trial attorney had not presented
any detailed information in support of this argument, just conclusory statements. The court of appeal rejected the argument that the court had
some duty to seek out evidence concerning the
defendant’s health before rejecting his motion. “A
trial court does not abuse its discretion for failing
to consider evidence not before it that the defendant had the prerogative to provide, but failed to
do so,” wrote Judge Zelon.
California — In an unpublished opinion in
People v. Henry, 2009 WL 3467498 (Cal. App.,
2nd Dist., Oct. 29, 2009), the court of appeal affirmed a six year prison sentence for a crossdressing HIV+ street hustler who was apprehended after allegedly offering to perform oral sex
on an undercover police officer for $10 without revealing that he was HIV+. At trial, evidence was
admitted of several prior convictions for the same
offense. The defendant contended that he was not
prostituting that day, but merely seeking a ride
from the officer, and that the prior incidents of
prostitution should not have been admitted in evidence. But the court of appeal concluded that the
prior incidents were relevant on the question of
intent.
Idaho — Kanay Mubita is appealing his conviction on 11 counts of exposing others to HIV.
While his appeal is pending, he has brought a 42
USC sec. 1983 privacy suit against the Moscow
City Police Chief Daniel Weaver, Assistant Chief
David Duke, and Office Paul Kwaitkowski, alleging that his right to privacy was violated by the
policy department’s use of confidential HIVrelated information from the Health Department.
Mubita particularly challenges the plastering of
posters about the town publicizing his HIV status,
presumably in an attempt to identify more victims
and warn members of the public about a sexually
active HIV+ man. In Mubita v. Weaver, 2009 WL
3426660 (D. Idaho, Oct. 16, 2009), Chief Judge
B. Lynn Winmill refused to intervene in the posttrial stage of Mubita’s criminal case, maintaining
a stay on his 1983 action as it relates to the criminal conviction, but Judge Winmill refused defendants’ request to stay or dismiss the 1983 claim
asserted on account of the publicity defendants
gave to plaintiff’s HIV status. While the former
claims were seen by the court as an “indirect
challenge” to the criminal conviction, an impermissible use of 1983, the judge saw no reason not
to go forward on the post-trial privacy claims, and
refused to dismiss those claims so long as the
post-conviction proceedings have not been completed.
HHS Office for Civil Rights — The Department
of Health and Human Service’s Office for Civil
Rights announced a settlement agreement with a
Lesbian/Gay Law Notes
Texas orthopedic surgeon who was charged with
violating the Americans With Disabilities Act by
refusing to provide treatment to HIV+ patients.
The surgeon has agreed to be educated about how
to perform surgery safely on HIV+ patients and to
refrain from his discriminatory policies. All the
materials released by HHS redact the name of the
surgeon and any other identifying information.
The press release went out on October 27.
Social Security Disability Cases
Colorado — Upholding a denial of disability
benefits in Haddock v. Astrue, 2009 WL 3162170
(D. Colo., Sept. 29, 2009), District Judge Philip
A. Brimmer found that the ALJ’s conclusion that
plaintiff’s HIV infection and Karposi’s sarcoma, a
skin cancer associated as an opportunistic infection with the immune suppression resulting from
HIV infection, had not rendered the plaintiff unable to work was supported by record evidence,
and rejected plaintiff’s claim on appeal that the
review tribunal’s rejection of additional evidence
was an abuse of discretion. The court determined
that the additional evidence would not have
November 2009
changed the conclusion that plaintiff was capable
of working.
Kentucky — In Miller v. Astrue, 2009 WL
3161456 (E.D.Ky., Sept. 29, 2009), Chief District
Judge Jennifer B. Coffman found that the ALJ had
correctly decided not to defer to a treating physician’s opinion that an HIV+ man was too disabled to work, because the opinion was inconsistent with record evidence of the plaintiff’s actual
physical activities at the relevant time. The court
also noted that the plaintiff’s HIV infection had
not resulted in any opportunistic infections, and
his other ailments did not cumulatively render
him incapable of gainful employment, and so upheld the denial of disability benefits.
New Jersey — In Dye v. Commissioner, 2009
WL 3242078 (D.N.J., Oct. 6, 2009), District
Judge Chesler upheld a determination that although the plaintiff did become disabled within
the meaning of the statute as of March 24, 2005,
he was capable of sedentary work prior to that
date, and thus did not become disabled at a time
when he was covered under the disability program, even though his HIV diagnosis dated back
to 2002. Despite minor misstatements of the rec-
209
ord in the ALJ decision, the court found that substantial evidence supported the ALJ’s determination.
Ohio — An HIV+ plaintiff was found by the
ALJ to have residual functional capacity to do
light work, despite his HIV infection and related
depression, and this was affirmed by the appeals
council and the district court in Santiago v. Commissioner of Social Security, 2009 WL 3242072
(N.D.Ohio, Sept. 30, 2009).
Pennsylvania — AN HIV+ plaintiff lost her
appeal of denial of disability benefits in Webster v.
Astrue, 2009 WL 3297318 (E.D.Pa., Oct. 14,
2009), the District Judge, Gene E.K. Pratter, approving U.S. Magistrate Elizabeth T. Hey’s conclusion that medical evidence in the record supported the ALJ’s determination that despite her
asymptomatic HIV infection, plaintiff was capable of working.
Pennsylvania — In Soto v. Astrue, 2009 WL
3473054 (E.D.Pa., Oct. 23, 2009), District Judge
Thomas Golden accepted a report by Magistrate
Timothy Rice recommending remand and reconsideration of the HIV+ plaintiff’s application for
disability benefits. The Magistrate found that the
Social Security ALJ had failed to deal adequately
with the opinions of plaintiff’s treating physician.
PUBLICATIONS NOTED & ANNOUNCEMENTS
ANNOUNCEMENTS
The New York City Bar’s Center for CLE is presented a half-day program on Workplace Issues
Affecting Lesbian, Gay, Bisexual, Transgender
and Gender Non-Conforming Employees & Their
Employers on Friday Nov. 6, from 9 am to noon at
the city Bar Association building in midtown
Manhattan. The program is sponsored by the Association’s LGBT Rights and Labor & Employment Law committees, and co-sponsored by the
LGBT Law Association of Greater New York and
the National Association of Women Lawyers. Call
212-382-6663 to register. The program carries 3
credits in professional practice for New York and
California lawyers and 2.75 general MCLE credits for Illinois lawyers.
LESBIAN & GAY & RELATED LEGAL ISSUES:
Baumle, Amanda K., The Cost of Parenthood: Unraveling the Effects of Sexual Orientation and
Gender on Income, 90 Soc. Sci. Q. 983 (12/1/09).
Bogdan, Michael, Private International Law
Aspects of the Introduction of Same-Sex Marriages
in Sweden, 78 Nordic J. Int’l L. 253 (2009).
Brant, Emily, Sentencing “Cybersex Offenders”: Individual Offenders Require Individualized
Conditions When Courts Restrict their Computer
Use and Internet Access, 58 Catholic Univ. L. Rev.
779 (Spring 2009).
Brown, Emily J., When Insiders Become Outsiders: Parental Objections to Public School Sex Education Programs, 59 Duke L.J. 109 (Oct.
2009)(argument in favor of allowing parents to
preserve the sexual ignorance of their children).
Chehardy, Ki8mberly N., Conflicting Approaches: Legalizing Same-Sex Marriage
Through Conflicts of Law, 8 Conn. Pub. Int. L.J.
301 (Spring/Summer 2009).
Clark, Stephen, Same-Sex But Equal: Reformulating the Miscegenation Aanlogy, 34 Rutgers
L.J. 107 (Fall 2002).
Conkle, Daniel O., Judicial Activism and Fourteenth Amendment Privacy Claims: The Allure of
Originalism and the Unappreciated Promise of
Constrained Non-Originalism, 14 Nexus: Chap.
J. L. & Pol’y 31 (2009).
Cowan, Sharon, Looking Back (To)wards the
Body: Medicalization and the GRA, 18 Social &
Legal Studies 247 (June 2009).
Cross, Jane E., Nan Palmer and Charlene L.
Smith, Families Redefined: Kinship Grouops That
Deserve Benefits, 78 Miss. L. J. 791 (Summer
2009).
Darmer, M.K.B., and Tiffany Chang, Moving
Beyond the ‘Immutability Debate’ in the Fight for
Equality After Proposition 8, 12 Scholar (St. Mary’s L. Rev. On Minority Issues) 1 (Fall 2009).
Gardon, Felix E., The REAL ID Act’s Implications for Transgender Rights, 30 Women’s Rts. L.
Rep. 352 (Winter 2009).
Gehi, Pooja, Struggles From the Margins: AntiImmigrant Legislation and the Impact on LowIncome Transgender People of Color, 30 Women’s
Rts. L. Rep. 315 (Winter 2009).
Gilreath, Shannon, Some Penetrating Observations on the Fifth Anniversary of Lawrence v. Texas:
Privacy, Dominance, and Substantive Equality
Theory, 30 Women’s Rts. L. Rep. 442
(Spring/Summer 2009).
Hebert, L. Camille, Transforming Transsexual
and Transgender Rights, 125 Wm & Mary J.
Women & L. 535 (Spring 2009).
Hillman, Elizabeth L., Heller, Citizenship, and
the Right to Serve in the Military, 60 Hastings L.J.
1269 (2008-2009) (suggests a 2nd Amendment
theory supporting right to gays to serve in the military).
Hollander, Michael, Gay Rights in Uganda:
Seeking to Overturn Uganda’s Anti-Sodomy Laws,
50 Va. J. Int’l L. 219 (Fall 2009).
Infanti, Anthony C., Bringing Sexual Orientation and Gender Identity into the Tax Classroom,
59 J. Legal Educ. 3 (August 2009).
Koons, Judith E., Engaging the Odd Couple:
Same-Sex Marriage and Evangelicalism in the
Public Square, 30 Women’s Rts. L. Rep. 255
(Winter 2009).
Lyke, Sheldon Bernard, Lawrence As An
Eighth Amendment Case: Sodomy and the Evolving Standards of Decency15 Wm & Mary J.
Women & L. 633 (Spring 2009).
Maravilla, Christopher Scott, The Other Don’t
Ask, Don’t Tell: Adultery Under the Uniform Code
of Military Justice After Lawrence v. Texas, 37 Cap.
U. L. Rev. 659 (Spring 2009).
Miller, Darrell A.H., State DOMAS, Neutral
Principles, and the Mobius of State Action, 81
Temple L. Rev. 967 (Winter 2008) (ingenious!)
NeJaime, Douglas, Inclusion, Accommodation,
and Recognition: Accounting for Differences
210
Based on Religion and Sexual Orientation, 32
Harv. J. L. & Gender 303 (Summer 2009).
Palmer, Meredith R., Finding Common
Ground: How Inclusive Language Can Account for
the Diversity of Sexual Minority Popluations in the
Employment Non-Discrimination Act,” 37 Hofstra
L. Rev. 873 (Spring 2009).
Patterson, Elizabeth G., Unintended Consequences: Why Congress Should Tread Lightly
When Entering the Field of Family Law, 25 Ga. St.
U. L. Rev. 397 (Winter 2008).
Redding, Jeffrey A., Proposition 8 and the Future of American Same-Sex Marriage Activism, 14
Nexus: Chap. J. L. & Pol’y 113 (2009).
Reibman, Rachel, The Patient Wanted the Doctor to Treat Her in the Closet, but the Janitor
Wouldn’t Open the Door: Healthcare Provider
Rights of Refusal Versus LGB Rights to Reproductive and Elder Health Care28 Temp. J. Sci. Tech.
& Envtl. L. 65 (Spring 2009).
Rimm, Jennifer, Booming Baby Business:
Regulating Commercial Surrogacy in India, 30 U.
Pa. J. Int’l L. 1429 (Summer 2009).
Roy, Joseph A., Non-Traditional Activism: Using Shareholder Proposals to Urge LGBT NonDiscrimination Protection, 74 Brook. L. Rev.
1513 (Summer 2009).
Seal, Lizzie, Discourses of single Women Accused of Murder: Mid Twentieth-Century Constructions of ‘Lesbians’ and ‘Spinsters’, 32
Women’s Studies Int’l Forum 209 (May-June
2009).
November 2009
Sharp, Andrew N., Gender Recognition in the
UK: A Great Leap Forward, 18 Social & Legal
Studies 241 (June 2009).
Silverman, Michael, Issues in Access to Healthcare by Transgender Individuals, 30 Women’s Rts.
L. Rep. 347 (Winter 2009).
Skinner, Matthew J., To Harm, To Victimize, and
To Destroy: The Ugly Reason Why the Chambers
Majority Opinion Was So Right, 72 Alb. L. Rev.
825 (2009) (deconstructing Rhode Island Supreme Court ruling in Chambers v. Ormiston,
holding the R.I. Family Court did not have jurisdiction to grant a divorce to a same-sex couple
who had married in Massachusetts).
Spade, Dean, Keynote Address: Trans Law Reform Strategies, Co-Optation, and the Potential
for Transformative Change, 30 Women’s Rts. L.
Rep. 288 (Winter 2009) (symposium).
Stieler, Kelley Frances, The Government Menage a Trois: Unraveling the Government Sex
Partner in Undercover Prostitution Stings, 15
Wash. & Lee J. Civ. Rts. & Social Just. 453
(Spring 2009).
Wiggum, Kacy Elizabeth, Defining Family in
American Prisons, 30 Women’s Rts. L. Rep. 357
(Winter 2009).
Wilemon, Kevin M., The Fair Housing Act, the
Communications Decency Act, and the Right of
Roommate Seekers to Discrimination Online, 29
Wash. Univ. J. L. & Pol’y 375 (2009).
Yin, Tung, Crying Wolf?: In re Marriage Cases
and Charges of Judicial Activism, 14 Nexus:
Chap. J. L. & Pol’y 45 (2009).
Lesbian/Gay Law Notes
Zanghellini, Aleardo, Underage Sex and Romance in Japanese Homoerotic Manga and
Anime, 18 Social & Legal Studies 159 (June
2009).
Specially Noted:
Symposium on Transgender Law, 30 Women’s
Rts. L. Rep. No. 2 (Winter 2009), individual articles noted above.
AIDS & RELATED LEGAL ISSUES:
Center, Claudia, and Brian East, The ADA
Amendments Act 0f 2008 and Employment: Practical Strategies, 43 Clearninghouse Rev. 121
(July-Aug. 2009).
Specially Noted
The National Association of People with AIDS in
Australia has published a monograph titled The
Criminalisation of HIV Transmission in Australia:
Legality, Morality and Reality, which is available
for download in a pdf file from the organization’s
website, napwa.org.au.
EDITOR’S NOTE:
All points of view expressed in Lesbian/Gay Law
Notes are those of identified writers, and are not
official positions of the Lesbian & Gay Law Association of Greater New York or the LeGaL Foundation, Inc. All comments in Publications Noted are
attributable to the Editor. Correspondence pertinent to issues covered in Lesbian/Gay Law Notes
is welcome and will be published subject to editing. Please address correspondence to the Editor
or send via e-mail.